But for a court to earn and retain the public’s trust, those decisions must reflect a judge’s considered individual moral and political judgments, not any fixed ideological position or platform. Justices must also engage in true collective deliberation, not factional conferencing based on ideological positions.
The Supreme Court still does this in a wide range of nonconstitutional cases and cases that involve complex federal statutes like the Employee Retirement Income Security Act. But it rarely engages in that kind of thoughtful, collective deliberation in cases that involve constitutional rights and freedoms. What is good enough for employment benefits should be good enough for constitutional rights.
Expanding the court (“court packing”) might be justified if things were to get worse. For now, it risks setting off a dynamic with dangers for democracy. It could result in a cycle of escalation — as soon as Republicans regain control of Washington, they would seek to expand the size of the court as well. This would create a court that is too large, is forced to sit in panels rather than en banc, or as a whole, and produces uneven and unpredictable results. This is basically the experience of the Supreme Court of India, which has about 30 justices.
And it would mean that would-be authoritarians around the world would feel licensed to do the same. They would be encouraged to engage in what David Landau of Florida State University College of Law and I have called a form of “abusive” borrowing — the adoption of court-packing as a strategy to advance anti-democratic rather than democratic aims.
No reform is without risks. Judges with fixed terms might also start considering post-judicial opportunities in their judgments. This is especially true for lower court judges, which explains why current reform efforts are focused solely on the Supreme Court. But this seems like a minor risk for the Supreme Court itself: Most justices are likely to prefer international arbitration or law teaching to ambassadorships. And as the commission itself noted, at least if there was a constitutional amendment, there could potentially be a bar on judges’ holding certain offices during a period after retirement.
Some might worry that the court could turn out to be too responsive to politics under a 12-year term. This was the main reason the commission itself preferred 18-year judicial terms. But the composition of such a court would remain constant only for a single presidential term. And the details would matter: All judges could be appointed during the final two years of a president’s term, when there is less likely to be unified government and when a president’s choices would affect only the next president. This could also be accompanied by changes to how the Senate vets and votes on nominees.
The biggest risk is that the reform will simply fail to get off the ground. Judicial term limits can be adopted by statute or constitutional amendment. If adopted by statute, it would come before the Supreme Court for review — and the court might well reject the argument that it is compatible with Article III, which entrenches guarantees of judicial independence.