Conservative members of Congress have voiced their unwavering opposition to President Joe Biden’s plan to transform the Supreme Court via three constitutional amendments the president proposed on Monday, calling the backdoor court-packing plan “pathetic,” unconstitutional, and “dead on arrival.”
On Monday, Biden bowed to pressure to change the make-up of the Supreme Court by proposing three “reforms” during a speech in Austin, Texas. The most consequential piece of the package would establish an 18-year term limit for Supreme Court justices, who currently serve for life. That arbitrary barrier would immediately apply to the court’s three most-senior justices, including two of its most tenacious originalists: Justices Clarence Thomas (who has served 33 years), Chief Justice John Roberts (19 years), and Justice Samuel Alito (18 years).
Justice Alito is the author of the Dobbs decision, which overturned Roe v. Wade.
“When the Left loses by the rules they put in place, they try to change the rules,” said Rep. Chuck Flesichmann (R-Tenn.) on “Washington Watch with Tony Perkins” on Tuesday. “It’s pathetic, really.” Perkins called it “a last-ditch effort for the Left to grab hold of power.”
“Don’t be fooled. This move by President Biden has nothing to do with protecting the court and has everything to do with the Left’s desire to dominate every institution in society. And today that means launching political broadside attacks on our independent judiciary. Those attacks must be rejected,” said Kristen Waggoner, president of the Alliance Defending Freedom, in a statement emailed to The Washington Stand.
Biden’s proposal builds on Democratic plans to pack the Supreme Court, which had built throughout President Donald Trump’s tenure in the White House. Several 2020 Democratic presidential hopefuls courted left-wing pressure groups, which supported “expanding” the court to 18 members. Candidate Biden opposed those and spoke out against them as recently as June 2022.
Fleischmann noted, under the guidance of the Left, Biden has weaponized every area of government to accomplish left-wing goals. “They work all three branches of government, including the executive branch, with their executive orders from Biden and radical left-wing presidents that hurt the country,” he told Perkins. “When they can’t get it through the legislative process, where it belongs, they’ll try the executive branch, and then they will try the courts. When they’re not succeeding there, they’ll try to change the rules.”
Biden also proposed a constitutional amendment to overturn the Supreme Court’s ruling that President Donald Trump in particular, and every president generally, has immunity from prosecution for acts carried out in his official capacity as president. Biden also backed a code of ethics forcing Supreme Court justices to recuse themselves from cases if their spouses have a political interest in the underlying issue — a prong targeted at Justice Thomas, whose wife, Ginni, is an outspoken constitutionalist and conservative.
Judicial term limits are popular, as are term limits for every office in government. Approximately two-thirds of Americans (67%) support a set term for judicial appointments, according to a poll from the Associated Press-NORC Center for Public Affairs Research. But Americans’ constitutional rights were intended to be “unalienable,” and thus, beyond the reach of any popular majority.
“Article III judges and the Supreme Court would be permanently marred if this were to happen,” said Rep. Pete Sessions (R-Texas) on Monday’s “Washington Watch.” Sessions noted judges throughout history, including his father, had the courage to make controversial decisions that upheld constitutional rights because a lifetime appointment freed them from the influence of party politicians. He also cited pioneers of the modern civil rights policies, which often originated in the judicial branch.
The Founding Fathers gave Supreme Court justices a lifetime tenure, while serving in good behavior, to assure they had the independence to secure those rights. “This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from … the arts of designing men … dangerous innovations in the government, and serious oppressions of the minor party,” wrote Alexander Hamilton in the Federalist Papers (No. 78). “If, then, the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty.”
Biden’s proposals have almost no chance of succeeding, since they require the Constitution to be amended, which would require a supermajority vote of Congress and ratification by three-quarters of the states. Both Republican congressional leaders, Speaker of the House Mike Johnson (R-La.) and Senate Minority Leader Mitch McConnell (R-Ky.), have indicated their opposition to the scheme. Both used the same phrase, pronouncing the plan “dead on arrival.” Johnson previously called Biden’s proposals “absurd.”
Biden confusingly responded by using the same phrase about Johnson. “That’s what he is,” Biden shouted at a press gaggle in Austin shortly before unveiling his plan. “He’s dead on arrival.”
Leonard Leo of the Federalist Society, whose advice to Republican leaders has helped reshape the judiciary, forecast that the court-packing scheme may “have the potential to energize conservatives in the presidential election.” But trying to shift the balance of political power by altering the Constitution could have permanently disfiguring impacts on our nation, warned Perkins.
“Anytime we have tinkered with the Constitution over the years and modified something major, it has had ripple effects upon our republic,” he said.
Ben Johnson is senior reporter and editor at The Washington Stand.
