By Kevin J. McMahon
To emphasize the importance of an election, presidential candidates often predict that the next president will have an opportunity to fill one or two vacancies on the U.S. Supreme Court.
But in the case of a hypothetical President Kamala Harris, this may not be true. Even if Harris were to win in November 2024, and then win reelection in 2028, she may not have a chance to reshape the court by filling the seat of a departing justice, especially a conservative one.
Jimmy Carter was the only one-term president who didn’t fill a Supreme Court vacancy. No president who won reelection has been denied this opportunity. In contrast, President Donald Trump was able to appoint three justices in a single term.
This inconsistency is one of the reasons why President Joe Biden’s call for Supreme Court reform, which Vice President Harris supports, should be considered a meaningful attempt to address a relatively new development that has diminished the ability of the people – through their elected representatives in the White House and the Senate – to shape an unelected Supreme Court.
Biden’s reform plan, outlined in an op-ed and a speech at the LBJ Presidential Library in Austin, Texas, includes two major legislative elements: 18-year term limits for justices and a “binding code of conduct” for the court’s members. The former proposal is particularly relevant for the future makeup of the court and the presidential election in November.
Collection of the Supreme Court of the United States via Getty Images
The Supreme Court’s place in American democracy
While every child in America learns in school of the Supreme Court’s independence, historically the justices have not been walled off from the larger world, issuing decisions while wearing political blinders.
Instead, they have been aligned with the enduring political regimes that dominated much of American history. Consider, for example, Thomas Jefferson’s Democratic-Republican Party and Abraham Lincoln’s Republican Party. Each party won six presidential elections in a row. Franklin D. Roosevelt’s Democratic Party won five straight presidential elections. From 1968-1992, Republicans won five of six presidential elections.
The court’s alignment with a dominant regime mattered greatly for American democracy. It was the primary reason political scientist Robert McCloskey concluded in his widely read book, “The American Supreme Court,” first published in 1960, that the justices rarely “lagged far behind nor forged far ahead of America.” Instead, McCloskey concluded, the court had typically stayed in line “with the mainstreams of American life and seldom overestimated its own power resources.”
A great deal has changed in the six-plus decades since McCloskey wrote those words. As I argue in my recently published book, “A Supreme Court Unlike Any Other: The Deepening Divide Between the Justices and the People,” those changes have undermined the court’s democratic legitimacy because the electoral link that once existed doesn’t anymore. Democratic candidates have won the popular vote in seven of the past eight presidential elections. Yet, six of the nine current justices have been appointed by Republican presidents.
Stock Montage/Getty Images
One of the key changes has been the length of time justices serve today. Consider that when Chief Justice John Marshall died in 1835, he set a record for service – at 34 years and five months – that would only be surpassed by one justice over the next 140 years. Indeed, from 1789 to 1971, justices served just over 16 years on average.
Today, however, presidents of both parties choose young nominees – generally around 50 – with the expectation that they will serve several decades. As I write in my book, “if the justices of today stay on their current course, Marshall’s mark will become commonplace. Assuming all stay on the Court until their eighty-fifth birthday – a few months older than the mean age of the last five justices to depart – they will have served thirty-three years on average.”
No change for another decade?
Consider that soon after he won his brutal confirmation fight in 1991 at the young age of 43, Clarence Thomas pledged to serve until he was 86. While those words were spoken long ago and may not be fulfilled, they highlight a central concern about the court’s place in American democracy today.
To help explain, let’s take Thomas at his word, and assume for a moment that he’s able and indeed does fulfill that promise he made long ago.
That would mean that at 76, Thomas – currently the oldest justice – would stay on the court for another decade. As noted above, this is not a wild assumption, as justices routinely stay on the court well into their 80s. Recall that Ruth Bader Ginsburg was 87 when she died in 2020. John Paul Stevens was 90 when he retired in 2010.
Let’s further assume that none of the other eight younger justices die or retire before Thomas. That would mean there would not be another Supreme Court vacancy until 2034, when Thomas departs after 43 years – nearly seven years longer than the current record, held by William O. Douglas.
It would also mean that if Harris were elected to the presidency in November and reelected in 2028, she would not have an opportunity to alter the court.
The court and political change
Enabling change is a centerpiece of democracy. But in choosing the like-minded youthful nominees intended to serve for decades, presidents hope to insulate policy from the ballot box.
Presidents admit as much by often saying that one of the most significant decisions they make in the Oval Office is their selections for the Supreme Court.
Why? It’s because those presidents understand that the justices will continue to affect American law and politics long after their presidencies have come to an end and long after the elections they won have faded from our collective memories.
For much of American history, justices served approximately a decade and a half, on average. However, only one justice appointed in the last 50 years – David Souter – has served less than two decades.
So, while the rules of lifetime service have always been in place, the justices of today have altered the terms of the arrangement. It used to be rare for a justice to serve for three decades. Now, it’s expected.
Biden’s reform
Biden’s call for an 18-year term limit for the justices seeks to rectify this development, putting the court back in its historical routine.
With two vacancies every two years, voters will understand the potential impact of their presidential vote on the makeup of the court. They would know the forthcoming departures and should be informed of the types of high court appointees the presidential candidates have promised to choose.
Finally, voters will no longer have to morbidly sit back and wonder if an aging justice will live past the next election, as liberal voters did with Ginsburg in 2020. The result will be a court more in line with the democratic traditions of the nation.
Given the lame-duck status of the president and Republican control of the House, the term-limit proposal will not pass this year. Nevertheless, it offers voters something serious to consider as they make their decisions about the candidates.
And, as a scholar who studies the American presidency and the Supreme Court, I believe it offers an opportunity to provide the court with a greater sense of democratic legitimacy.
Kevin J. McMahon is Professor of Political Science at Trinity College.
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Jim says
We should all want the Supreme Court to be a trusted part of the Federal government. By implementing term limits (18 years is a pretty long term) and an enforceable code of conduct, this seems to be a good approach to securing our trust. If these were in place, it wouldn’t matter whether you’re a Republican or a Democrat, the court would at least be stable and ethical which is something I would hope we all want.
Members of the current court have shown that they have a very loose relationship with ethics (how many of you have been given a $274k “gift”?) and seem to be unconcerned with how their behavior tips their bias. We need the Supreme Court to have the same requirements in place as all the lower courts. They may be “Supreme” but they are not “above the law” (unlike the president apparently is now….).
Democracy is an easy thing to lose. We should all want to assure as many safeguards as possible are in place to prevent that.
Land of no turn signals says says
Frick and Frack standing next to there nominee.
Sherry says
@land of. . . at least all three of them are educated enough to know which possessive “their” to use in that sentence. LOL!
Laurel says
Besides reasonable term limits for the Supreme Court, President Biden is proposing the No One is Above the Law amendment, and a binding Code of Ethics for Supreme Court judges. How can Republicans disagree with that? They will.
Ed P says
Supreme Court ruled immunity from “core” powers. Not criminal misconduct. Legal scholars weigh in that it is a middle of the road ruling.
If all justices simply ruled on cases from a constitutional legal perspective and we didn’t wish them to legislate, there wouldn’t be issues.
If we term limit them, Congress as well.
Changing rules because liberals don’t like appointed judges is pretty transparent and doesn’t seen very democratic. Looks and feels a bit authoritarian.
Laurel says
Ed P.: Please explain to me why this has never been an issue with all the Presidents before (and after) Trump. Why is it important now, but not important to keep in place for President Biden.
C’mon, you know. Let’s hear it.
Sherry says
Thank you Laurel!
Ed P says
I’m only guessing you are referring to the immunity ruling?
I am not a legal beagle nor a constitutional expert. I would simply refer you back to the ruling and ask you why you as a laymen are qualified to reject their ruling?
May I also point out it has been posted multiple times that “everyone Lies” so would the word “everyone” include SCOTUS?
We are in uncharted waters in the current political environment and very little is normal. Did Trump derangement create the issue or did Trump create the issue, or is it a little of both?
Now to the fact of your posting multiple times that Judge Thomas accepted expensive “gifts”. I can attest to the fact that the Uber rich world beats to a different drummer. I have been on the receiving end of private jet travel, resort rooms with butlers who light your fire place at night and even iron the Wall Street journal so the ink will not tranfer to your fingers. I’ve been entertained at mansions with private Michelin chefs, where the fresh cut flower cost exceeded my annual income. This is normal for that crowd and is not provided to their friends to get something back. It’s their world and they truly enjoy sharing with their friends.
Not every gesture or favor requires a quid pro quo.
Ray W. says
Thank you, Ed P.
This is the Ed P I have long known existed. Not the angry and defensive Ed P, but the thoughtful Ed P who desires persuasion above other goals. Little in the way of hyperbole, exaggeration, or underselling. Personal observations.
It is completely unimportant whether I agree or not. The importance is a presentation of a perspective sans “pestilential” partisan thought, a presentation that allows for reasoned debate.
As an aside, can it be argued that whoever started both TDS and KDS cannot now be determined? That it has spun out of control. Being a Hegelian at heart, to me, means that when one body instigates TDS, the opposing body will automatically instigate KDS.
Ed P says
Ray W,
I’m intrigued. This is the second post that I recall where you state that you are a Hegelian. My immediate thought is that Karl Marx was possibly the most influential Hegelian.
Inference is one can philosophically think along the lines of Karl Marx and not be a Marxist. Hence, someone could philosophically agree with the MAGA movement but not me a member.
Your thoughts?
Ray W. says
Freud wrote in a letter that his individual ego, id, superego trio were directly influenced by Hegel’s societal hypothesis, antithesis, synthesis trio. He lauded Hegel’s Trinity.
Indeed, it can be argued that the checks and balances written into our Constitution formed the impetus for Hegel’s philosophy. Our founding fathers believed that clashes between regions, between federal and state governments, between each of the three branches of the federal government, coming from Constitutional checks and balances, were the best way to hold our nation together. So, yes, since I am a Constitutionalist, I do lean towards Hegelian thought, as they are quite similar. But leaning towards Hegel’s derivation of our founding father’s extraordinary ideas does not mean that by inference I am a Marxist. Do you now see how wrong you are in the inference you tried and failed to support?
I accept the fact that you have long tried to thwart reason to achieve your predetermined goals. Reason, as our founding fathers understood it, requires one to follow it to whatever end it led them. Perhaps the best example of this is in Jefferson’s letter to a favored nephew. Upon graduation from university, the nephew was advised by Jefferson to use the reason he had been trained to use to determine the important issue of whether God existed or not. Jefferson advised his nephew to not listen to anyone during this trial of reason. The nephew was to follow his own reason to whatever end it led. If, Jefferson advised, the nephew reasoned that God did not exist, he would still be better off for having used Heaven’s greatest gift to mankind: Reason. If the nephew reasoned that God did exist, the exercise would still help him throughout life.
Our founding fathers wanted debate, they wanted clashes of ideas, they wanted persuasion that enabled them to best lead a virtuous and prosperous nation. I do, too. They rejected the “pestilential” partisan member of faction, one who is beholden to party politics, as a person incapable of being swayed by reason. I want you to be a voice of reasoned conservatism. Unfortunately, you seem to lack so much understanding about our history as political philosophers.
Social historians have long argued that Hegel was the most influential of the many 19th century philosophers. Marx was but one who was influenced. Socialism, Anarchism, communism, populism, all seem to have roots in Hegelian thought. But all of these are derivative movements. Marx took what he wanted from Hegel and distorted it to fit his goals. Theirs was a world that would ignite by the individual act, one that would ignite a conflagration that would overwhelm the old-world order. This is not Hegelian thought. Picture the anarchist who ran up to an Italian princess who was walking on a promenade in a Swiss village and stabbed her to death. He threw down the knife and declared: “Let the revolution begin!” His bastardized form of Hegelianism wasn’t an ever-changing synthesis brought on by a clash of ideas; it was to be an annihilation.
Hegel did not write of individual acts triggering change; he wrote of societal ideas clashing, which is exactly what our founding fathers relied on as a means to maintain the nation. Freud applied Hegel’s societal ideas to individual internal conflicts. It was the clash between the superego and the id that led to the ego, or the synthesis of the ever-changing individual being. But the clash was never to annihilate the ego.
I see you changing over a period of time in a Freudian way, but there is an underlying maliciousness to your comments. Please work harder on that. That is Hegelian thought. Consider it.
Yes, I oppose you when you misinform and disinform. And I always will. But when you post a comment that shows you are capable of so much more, I applaud you.
Ed P says
Ray W,
I may not have delivered my question properly. There wasn’t any inference, I I clearly understand that you are not a Marxist.
My question revolves around the fact that not every Republican is a MAGA nor a conservative , but the left doesn’t appear to leave any room for these individuals to coalesce around the Maga philosophy while not being a member. Can they have philosophical commonalities but be different?
Is this premise a possibility?
Ray W. says
Ed P’s mention of an open opulence shared with honored guests without thought of quid pro quo brings to mind another passage from John Ghazvinian’s “America and Iran”.
He writes of a tw0-year effort to hammer out a treaty between America and Iran, beginning in 1854.
“The opening words of the treaty told Americans everything they would ever need to know about Persia. ‘The President of the United States,’ it began:
‘and his Majesty as exalted as the Planet Saturn; the Sovereign to whom the Sun serves as a standard; whose splendour and magnificence are equal to that of the skies; the Sublime Sovereign, the Monarch whose armies are as numerous as the Stars; whose greatness calls to mind that of Jeinshid; whose magnificence equals that of Darius; the heir of the Crown and Throne of the Kayanians; the Sublime Emperor of all Persia . . .’
“And so on and so on. The Persians were great sticklers for ceremony, it turned out, and now that the treaty was ratified, they expected an exchange of gifts to mark the important occasion. At Spence’s insistence, the United States spent $10,000 (close to $1 million in today’s money) on diamond-studded snuffboxes and weapons for the shah. The State Department protested bitterly, as it was not in the habit of spending such outrageous sums, but Spence put his foot down, knowing these gifts paled in comparison with what Persia had received from Napolean and others. Spence’s brother Charles was dispatched to Tehran to deliver the gifts in person — a gesture the shah appreciated so much that he decorated the young man with the Order of the Lion and Sun, the country’s highest honor.
“These demonstrations of protocol seemed a trivial and tedious distraction to the United States, which liked to think of itself as a humble, pragmatic power, removed from the blandishments of the old world. But to Persians, courtesy, respect, and ceremony were as fundamental to political relations as any practical matter of policy. They even had a word for it, one virtually impossible to translate into any Western tongue. Ritual, respect, protocol, form, ceremony, courtesy — the Persians called it tashrifat, and you ignored it at your peril. This was a lesson the United States would learn again and again in its dealings with Iran — often the hard way.”
Joe D says
For Ed: yes, the rich, famous, and entitled of the world live under a different standard of living, to justify the “lifestyle perks”…( although there is STILL something about Judicial Appointments being treated to such lifestyle perks…
So SIMPLE solution: do what other Judges are required to do: take themselves OFF cases where they either have close personal ties, or their “friends” could directly BENEFIT from the JUSTICES’ decision on any given case. However it appears the potential “CONFLICT of INTEREST” perceived or not…which could influence their case decisions, doesn’t seem to be a concern for the current SCOTUS judges…why not?
Laurel says
Ed P: “This is normal [expensive gifts] for that crowd and is not provided to their friends to get something back. It’s their world and they truly enjoy sharing with their friends.
Not every gesture or favor requires a quid pro quo.”
We are talking about Supreme Court Judges here, who make life effecting decisions for all of us. Do you really believe the “Uber rich” (capital U) are not interested in influencing Justices to decide in their favor? It just *looks* bad? Why would that be? Just having three Justices appointed, in a row, from one political party is in rather obvious hopes of quid pro quo. Just look at Judge Cannon, who barely knows her way around, and dismissed a case of multiple boxes of stolen top secret security documents. Was that “sharing, or is she just traveling to a beat of a different drummer?
Go to any civil servant, right here in your own county, and ask them what they can accept from their “friends,” if their “friends” could even minutely influence them by these gifts. They have reoccurring, mandatory meetings that state what is not acceptable, which is anything like a Thanksgiving turkey and up, and we are not talking multiple, uber rich “sharing.”
Do you believe that “sharing” is one reason why the American public has such a low opinion of the Supreme Court of the United States of America?
Ed P says
First, sounds like a conspiracy theory. Secondly, when did polls accurately reflect political opinion? Popularity is not a goal of SCOTUS.
Here’s the reality, if a private jet seats 10 and they have 4 family members, 6 friends travel along at a very nominal cost and the hosts get ooohs and aahhs and continuous thank you’s. When they take an entire hotel floor or rent a boutique resort, once again friends are a minimal cost.
I can’t speak to every situation but I ran with a very high profile and Uber rich crowd during the 90s. I shopped closed malls, even toured Ben and Jerry’s ice cream facility privately, along with Graceland, the Alamo and even spent a private weekend at the Jim Beam Distillery with the Charlie Daniel’s band and Booker Beam himself. Super Bowl suites, Indy 500 suites were normal weekend outings.
My price of admission, friendship and brutal honesty.
So, it is possible.
Ray W. says
And yet you didn’t learn from all that.
It is the appearance of impropriety, regardless of the cavalier non-intent of the uber-wealthy, that drive judicial rules pertaining to gifts. Please, you can do better.
Gifts can carry the appearance of impropriety. Not even you can distort reason sufficiently to erase the appearance of impropriety of the purported non-gift you describe.
Even junior prosecutors and public defenders have to report gifts worth more than $100. If a client’s family delivered a basket of edible fruits to the office after the case was won, if it was worth over $100, I reported it. The fruit baskets never were worth more than $100, but I had to check. The wife of a client sent me a box of vegetable and fruit vitamin supplements. I checked. Under $100.
As a prosecutor, when I met for lunch with defense attorneys, I always bought their first lunch. We would alternate in the future, but they were never ahead.
Trial practice norms in the early years were that the loser bought drinks that evening. I changed that to the winner bought dinner or lunch the next day. The camaraderie that existed between prosecutors and defense attorneys in my early days in now long gone, though I kept trying. Every so often near the end of my career, the two homicide prosecutors in the northern counties would lunch with me and my partner public defender. We paid for our own lunches, but it was an amicable way to just talk about cases without necessarily resolving them. No need to report the gift of camaraderie and professionalism.
Ed P says
Final thought, appearance of impropriety is not the same as being improper. Just like Jim and Hunter Biden(remember Bobolinski?) 10% for the big guy….doesn’t make it so.
Second, a real and personal friendship comes without strings attached, why can’t it be true for Judge Thomas?
Bob says
This is the way the Liberals want to regain power. If things are not going their way, why not change it.
Kim says
For Ed P and Bob,
Really? But was it OK for you guys then that when Antonin Scalia died in February 2016 in the beginning of a presidential election year, the Republican majority in the Senate made it their stated policy to refuse to consider any nominee to the Supreme Court, arguing that the next president should be the one to appoint Scalia’s replacement? Interesting that I don’t see that referenced.
Ed P says
Didn’t require a constitutional change. It was a procedural move not a sea change. Very very different.
Pierre Tristam says
Funny how dishonesty always finds a way to justify theft. (The commenter will now likely come back with crockery about the “stolen” 3020 election. Wait for it.)
The dude says
A “procedure” they immediately abandoned, as is their way when it comes to anything involving principles.
So great… you flew on some PJ’s, had a butler light your fires, and you jammed with the Charlie Daniels band… how many RV loans have you had forgiven from your friends for nothing more than friendship and brutal honesty?
I too run with famous folks, and have been on the recieving end of some pretty cool experiences due to a lifelong friendship. Have Harlan Crow, Samuel Alito, and Clarence Thomas been friends all their lives? If not, exactly when did they become besties?
Occam’s Razor applies in most cases. Given the nature of the names involved, it’s a pretty sure bet it applies here too.
feddy says
Term limits, ok but lets not stop at supreme courts. If this is a serious concern, then instead of trying to play politics and manipulating the supreme court then include it to politicians. Remember Diane Feinstein, a perfect example, she was 90 years old, still serving and about 2 weeks before her death she was involved with a vote and had no clue where she was or what was the vote. Another Senator told her to how to vote.
Tony Mac says
Charles (Chuck) Grassley is an American politician serving as the senior United States senator from Iowa, having held the seat since 1981. Grassley was first elected to the Senate in 1980 and has been re elected seven times.
Grassley is 91!
Sherry says
Thanks Tony Mac. . . to the maga cult it’s only the Democratic leaders that are too old. . . because Fox says so.
feddy says
Agree, does not matter what political affiliation they are and yes Charley Grassley and Mitch McConnell which froze up a few times which was in the public eye just like Diane Feinstein.
Sherry says
This Democrat certainly agrees with term limits and strict ethics rules (with penalties) not only for the Supreme Court, but for every single political office at every level. Good Luck With That!
Dbhammock says
We already have terms limits on the presidency, if you want to put term limits on the judiciary, then go all the way and legislate term limits for congress as well. Don’t go half way. But will congress legislate term limits on themselves, I don’t think so. Why didn’t Biden recommend term limits for all, why just the Supreme Court? Rhetorical question.
Laurel says
Dbhammock: I don’t totally disagree with you, however, the Supreme Court has become a political activist court. They are not supposed to do that, for the Republicans or the Democrats. As it is now, if you have an issue that makes it all the way to the Supreme Court, your issue may be decided against you simply if you are politically different, instead of decided by pure facts ending with justice. Justices like Thomas cannot be trusted because of his acceptance of very expensive gifts. You don’t want that, and I don’t want that.
Sherry says
Although I absolutely believe that we should have term limits for political offices as well as judicial ones. . . consider the thinking that “elected” officials could easily be “term limited” by the voters. If only the voters would take that sacred “right” and vote in an informed and responsible way. While on the other hand, Supreme Court justices are NOT elected, they are appointed for “life”. Two very different kettles of fish.