Calls for Supreme Court term limits attack foundations of our federal republic

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As the story goes, when Benjamin Franklin exited the Constitutional Convention in 1787, he was asked what sort of government had been created, and he responded, “a republic, if you can keep it.” Essential to a “little-r” republican form of government, as opposed to a pure democracy, is the separation of powers.

On this separation of powers, former president James Madison, the “Father of the Constitution,” quoted the great Enlightenment thinker Montesquieu in Federalist No. 47: “there can be no liberty … if the power of judging be not separated from the legislative and executive powers.” In other words, as Madison also noted in Federalist No. 10, pure democracy without the separation of powers cannot stop “factions” from oppressing political minorities and running roughshod over liberty.

The “counter-majoritarian” Supreme Court is, therefore, a bulwark against government oppression and overreach. It is essential to our liberty. And that is why, as Alexander Hamilton wrote in Federalist No. 78, all federal judges, including Supreme Court justices, serve “during good behavior.” In other words, they have life tenure. As Hamilton put it, this is essential to preventing “the encroachments and oppressions of the” — democratically elected — “representative body.” Only if judges have life tenure can there be “complete independence of the courts,” which is “peculiarly essential in a limited Constitution.”

Our founders therefore expressly provided for life tenure in Article III of our U.S. Constitution. No act of Congress can change that.

Yet last week President Joe Biden proposed an act of Congress that would establish term limits on Supreme Court justices. He (or someone in his administration) has surely read the plain text of the Constitution. Nonetheless, he proposes exactly what Hamilton said the Constitution was written to prevent. It is a flat-out threat to the judicial branch of government.

Biden’s proposal appears borne out of mere frustration with the court exercising its counter-majoritarian function. This is pretty obvious: he is calling for a change to presidential immunity at the same time, in response to the court’s recent decision that hinders his administration’s efforts to prosecute his political opponent.

His frustration with — and, frankly, contempt for — this court is not new. He raised eyebrows just a few months ago when he said that “the Supreme Court blocked it, but that didn’t stop me” related to student loan debt cancellation. His creation of a Presidential Commission on the Supreme Court in 2021, which expressly considered “court-packing,” likewise raised eyebrows.

He is far from alone on the political left. Minnesotans can see the same contempt for the independence of the judicial branch from U.S. Sen. Tina Smith. Smith’s repeated song is to “expand the court,” out of clear frustration with the latest SCOTUS term. But I note that Smith has not called for any increase to the current number of justices on the Minnesota Supreme Court — which is possible under Article VI of the Minnesota Constitution — where all seven have been appointed by DFL governors.

Political frustrations like Biden’s and Smith’s are not reasons to destroy the checks and balances carefully crafted by our founders. And I don’t believe Americans will stand for it: American politicians have attempted to manipulate the court for political purposes before, and they have failed. John Adams and Franklin Delano Roosevelt are two of them.

FDR is of particular note. Frustrated with the “conservative” Supreme Court in the New Deal era, FDR fought the institution of the court and lost badly. Even after the court upheld FDR’s Social Security Act in 1937, he continued to attack it. He was rewarded with his greatest legislative defeat: the Judicial Procedures Reform Bill was crushed by an overwhelming Democrat majority, 70-20. This was after a Democrat-controlled Judiciary Committee said that the “bill is an invasion of judicial power such as has never before been attempted in this country” and noted that “in every instance after the Adams Administration, save one, the changes were made for purely administrative purposes in aid of the Court, not to control it.”

Simply put, the American people on both sides of the aisle have always valued the independence of the judiciary and stood against attempts to eliminate that independence.

It is hard to conceive of a reason for Biden’s proposed term limits, or for the court-packing championed by Smith, beyond political motivations. These seriously flawed political proposals should be roundly rejected if we are to live up to Franklin’s words and keep our republic.

James Dickey is senior counsel at the Upper Midwest Law Center.