By John A. Sparks

President Joe Biden, displeased by recent Supreme Court decisions, is thus proposing several changes. His vexation with the court is reminiscent of Erwin Chemerinsky, dean of the University of California-Berkeley Law School, who flatly said that changing the court was “the only way to keep there from being a very conservative court for the next 10-20 years.”

These calls for change are for the most part simply born of political dissatisfaction. Nevertheless, proposals and assertions about the need for court change deserve to be addressed.

One of them, an idea that President Biden embraces, is an 18-year term limit for Supreme Court justices. Simply put, when a justice has reached 18 years of service, he or she is finished and can no longer serve on the country’s highest court. For now, let’s leave aside how new appointments would be made to positions vacated by the term-limit requirement. (It seems, though it is unclear, that the Biden proposal would call for the then-current president to make two appointments per presidential term to fill any openings.)

Is a term limit a good idea for the high court?

Let’s first look at just how many justices, including chief justices, have actually served 18 years or more on the court over its 235-year history. To date, the court has had a total of 116 justices, including chief justices. Of those, 52 have served 18 years or more. In other words, a surprising 45% of all Supreme Court justices would have had to step down if the “Biden Plan” had been initiated from the court’s beginning. If producing certainty and predictability are desirable features of constitutional law, well, Biden’s plan would inject an unnecessary volatility into its proceedings.

Nevertheless, let’s explore the consequences of the plan by simply applying it to the existing court, which may very well be the primary intention of President Joe Biden.

Chief Justice John Roberts would have to go under the “18 years-and-out” rule. He has served almost 19 years. Justice Clarence Thomas, who has served almost 33 years, would be shown the door. Justice Samuel Alito is also beyond the 18-year cut-off. It is well worth noting that two of the more liberal members of the court, Justices Sonia Sotomayor and Elena Kagan, will reach the 18-year mark within the next three or four years. When that happens, out they would go.

Considering the liberal-conservative breakdown, let’s leave the present and again look back at the history of the court. Just who would have been “excused” from the high court bench early under the Biden Plan? Several Justices from the liberal side of the spectrum: William O. Douglas (served over 36 years), William J. Brennan, Jr. (served over 33 years), Stephen Breyer (served over 27 years), Harry Blackmun, author of Roe v. Wade (served over 24 years), Thurgood Marshall, the first black justice (served over 23 years), and Ruth Bader Ginsburg (served over 27 years). Of course, at the same time, various noteworthy conservative justices would have had their careers cut short, such as William Rehnquist (served over 33 years) and Antonin Scalia (over 29 years).

In retrospect, what would the truncating of these terms have meant to the judicial output of these historic justices? In many cases, it would have interrupted these justices’ prolific output in their prime. Take Justice Ginsburg as an example: the 18 year-and-out rule would have eliminated approximately 50 majority opinions which she penned. Instead of leaving the bench in 2020, she would have been ushered out in 2011. On the other side of the spectrum, there’s Justice Scalia, who served 29 years until his death in 2016. If Scalia in 2004 had instead been dismissed from service under a plan like Biden’s, the country would have lost at least 50 majority opinions that he crafted.

Going back even further, such a system of 18-year term limits would have significantly shorted the judicial careers of some the key and most respected jurists in American judicial history: Chief Justice John Marshall is the most obvious choice. He served 34 years, but under Biden’s proposal, Marshall would have been removed from the court before his famous decisions in McCulloch v. Maryland and Gibbons v. Ogden. Other well-respected American jurists would have had their careers and contributions cut short under the Biden Plan. A sampling of their years of service is instructive: Stephen J. Field (over 34 years), Joseph Story (over 33 years), Oliver Wendell Holmes (over 29 years), Felix Frankfurter (over 23 years), and Louis Brandeis (over 22 years).

President Biden further implies that under our current system there is unfairness for presidents who might not have a chance to nominate a Supreme Court candidate during a presidential term. Therefore, his proposal calls for guaranteeing each president two choices per four-year term. However, the facts show that the current system of Supreme Court appointments actually yields a relatively even distribution of opportunities to appoint justices. Virtually every president serving a full term, Jimmy Carter being the only exception, has had the opportunity to appoint at least one justice. Remarkably, the average number of appointments by each of our 46 presidents is approximately 2.6 appointees. Historically, one-term presidents (and certainly two-term presidents) will have an opportunity to influence the court by making appointments. So, Biden’s concern about presidential opportunities to appoint is ill-founded.

Nonetheless, Biden’s proposal has supporters among progressives.

The liberal Brennan Center’s judiciary program director, Alicia Bannon, explains the fundamental aim of the term-limits proposal for the Supreme Court: Term limits would “strengthen the democratic link between the court and the public.”

But in reality, both Bannon and Biden refuse to recognize that the American founders specifically did not want all three branches to be “democratic.” It was the U.S. House of Representatives that was to be more beholden to “the people” with frequent elections. Even there, the structure of the House is a representative system, and not a direct democracy. The Senate is certainly not democratic. The smallest state in terms of population, Wyoming, has the same number of senators (two) as the largest state, California.

As for the judicial branch, Supreme Court justices are not voted on directly by the people but must be nominated by a president who himself was not directly elected but triumphs through the Electoral College system. The judicial nominee must be approved by the Senate. Moreover, the term of the justices is “life.” In a very real sense, the court is not to have a “direct link to the public” precisely so that the court can protect citizens, dare it be said, against what Madison called an “overbearing majority.”

In short, the Biden proposal is influenced not by concerns for “democracy” but politics. It is ill-conceived and unnecessary.

Dr. John A. Sparks is the retired Dean of Arts & Letters, Grove City College and a Fellow in the Institute for Faith and Freedom. He is a member of the state bar of Pennsylvania and a graduate of Grove City College and the University of Michigan Law School. Sparks writes regularly for the Institute on Supreme Court developments.