Biden Uses the Bully Pulpit to Shift US Supreme Court History

President Joe Biden’s embrace of US Supreme Court justice term limits, among other reforms, caps a years-long decline in progressive support for the court as an institution. In evaluating this proposal, we should consider its intended outcome, what complications it could create in the nominations process, and the real-world impact.

The proposed reforms follow recent ethics concerns about the high court and its recent opinion involving presidential immunity for official acts. The president’s stated goal is to “restore trust and accountability to the court,” adding that term limits would make “nominations more predictable and less arbitrary” and “reduce the chance that any single presidency radically alters the makeup of the court.”

To accomplish this, Biden would make Supreme Court appointments subject to 18-year term limits, putting the seats on rotation so that every president is guaranteed two appointments. This was one of several proposals discussed in a presidential commission on the Supreme Court, drafted early in Biden’s term.

By creating a “more predictable and less arbitrary” changing of the personnel at the Supreme Court, there would be a little less certainty in how a given case would be handled by the time it reaches the court. The Loper Bright case that shifted a 40-year precedent on legal deference to agencies was filed in February 2020, argued in January 2024, and decided in June 2024.

Under the term-limits proposal, Biden might have appointed two new justices in 2021 and 2023. This would have made it less likely that the plaintiff in Loper Bright would have won, or even been filed following the 2020 election results.

For cases that take longer than a presidential term to receive an opinion from the Supreme Court, this would create some uncertainty and may end up causing less strategic “ideological” litigation—such as Loper Bright. This is likely the best-case argument for term limits reform.

However, Biden’s proposal fails to address the issue of when a presidential nomination doesn’t guarantee Senate confirmation. In cases such as Merrick Garland’s, the Senate may not even have a vote, or may reject the nominee altogether.

The commission on court reform acknowledges these limitations, noting that any term limits proposal should “provide an acceptable mechanism for resolving the problem of repeated confirmation impasses” and “absent such a mechanism, the repeated failure of the Senate to confirm any nominee would undermine a major justification for staggered term limits.” At the same time, the proposal “must not give too much effective power to the President.”

One interpretation of Biden’s proposal is that it shifts power from the courts to the president. By instituting term limits, the proposal automatically makes the court’s composition follow the results of presidential elections, further politicizing the judiciary.

With that interpretation in mind, it’s necessary to consider the practical impact of the president’s proposal. It’s currently a nonstarter from a policy perspective because it likely would require a constitutional amendment. However, Biden’s proposal was not made to be enacted, but to make a political argument.

Instead, Biden is focusing attention on the justices to alter their behavior. Just as Franklin Roosevelt put political pressure on the court by suggesting adding more justices after it rejected several of his New Deal laws, Biden and other Democrats are putting similar pressure on the court now.

This is the president using the bully pulpit. He is attempting to mobilize public opinion against the court and raise questions about its legitimacy if it continues to move precedent in a conservative direction.

Roosevelt’s pressure resulted in the “switch in time that saved nine.” Justice Owen Roberts changed positions and started upholding Roosevelt’s laws. If Vice President Kamala Harris wins in November, we can expect continued pressure on this court until it too changes its behavior.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Soren Dayton is the director of governance at the Niskanen Center where he leads efforts to imagine and bring about new forms of political leadership and political institutions.

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