Term Limits Aren’t Enough. The Supreme Court Needs More Justices

Alexander Hamilton’s famous description of the US Supreme Court in Federalist 78 as the “least dangerous branch” was proven wrong soon after it was written.

In 1803, the court claimed the power to strike down laws without any constitutional authority in Marbury v. Madison—a constitutional ruling concerning outgoing President John Adams and incoming President Thomas Jefferson.

The court’s 1857 Dred Scott v. Sanford decision declared the Missouri Compromise unconstitutional, upheld slavery in US territories, and held Black people weren’t citizens, helping ignite the Civil War.

And in the era following its 1905 decision in Lochner v. New York over bakers’ working hours, the court claimed for itself an extraordinary power to police the other branches and state governments, denying their ability to adopt key economic and social policies.

Only President Franklin Roosevelt’s later threat to add seats to the court and dilute the power of sitting justices ended its anti-democratic grip on government. The court had thwarted Roosevelt’s major New Deal policies, making it impossible for Congress and the president to respond to the Great Depression.

It only backed down when Roosevelt pushed back on its unconstitutional power grab by proposing adding justices. At that point, some justices switched sides on key cases and others quickly retired.

We are in a new Lochner era, characterized by a Supreme Court determined to thwart the will of the people and longstanding constitutional doctrines, particularly in areas relating to fundamental rights and government regulation.

With that in mind, President Joe Biden and Vice President Kamala Harris proposed some necessary and overdue reforms, including ethics rules for the members of the Supreme Court and term limits. I applaud these ideas, but don’t believe they go far enough.

I served as a member of Biden’s Presidential Commission on the Supreme Court of the United States, a bipartisan group of scholars, former federal judges, practitioners, and advocates, which considered a variety of proposals.

We evaluated term limits, jurisdiction restrictions, supermajority rules for voting in constitutional cases, and ethics reforms, as well as court expansion.

Many if not all of these ideas are worth pursuing, but I’m increasingly convinced that without adding justices, we will never be able to countermand the antidemocratic and even theocratic tendencies of the Roberts Court.

Since former President Donald Trump’s appointment of three far-right justices created a 6-3 majority for Republicans, the court has engaged in a slash and burn attack on prevailing constitutional law. It’s upended abortion and voting laws, denied states and localities the ability to regulate guns, and ended affirmative action in university admissions.

Most recently, the court overturned a 40-year precedent under which courts rightly deferred to expertise of administrative agencies when statutes are ambiguous rather than imposing their own uninformed views.

And of course, the court turned on its head our previous understanding of the separation of church and state. From allowing public school funding to go to private sectarian schools to permitting Christian prayer at school sporting events, and overriding states’ antidiscrimination laws that allegedly interfered with “religious liberty,” the court has consistently allowed people to impose their religious views on others to override otherwise generally applicable law

Roosevelt knew democracy in America was threatened by a court that believed itself superior to the other branches and was in thrall to an extremist ideology. He rightly urged Congress to increase the court’s size to dilute the power of the current justices, especially as the number of justices isn’t fixed in the Constitution, and the overall number of justices has changed several times in our history.

After the Civil War, Congress reduced its size of the court to prevent President Andrew Johnson from appointing justices who would undermine Reconstruction. Then as now, the court’s rulings threaten the government’s ability to implement critical policies.

In the current era, the Roberts Court has thwarted efforts to fight climate change, ensure a strong economy, and protect civil rights and liberties. But even more dangerously, its decisions undermine democracy itself through its rulings on election law and presidential immunity.

The stakes remain high this fall during election season as the fate of our presidency is resolved.

So that’s why as much as I support term limits and ethics reforms, which are widely supported and should be a no-brainer in a nation of laws, I don’t believe they will address our current crisis.

There are manifold reasons for term limits, well-explained in the report of the American Academy of Arts and Sciences Working Group in which I participated, as well as for Supreme Court ethics rules. The benefits of both practices seem so obvious they almost need no further defense, but the crisis we face will not be solved by these well-intentioned proposals.

Without court expansion, the Roberts Court will face no constraints in its assault on democracy and critical rights. Call it “court-packing” or “court expansion”—either way, it’s better than an authoritarian theocracy.

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

Caroline Fredrickson is strategic councilor on democracy and power at the Open Markets Institute and served on the presidential Supreme Court commission.

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