A President Harris may not get Supreme Court nominees – Biden proposes term limits to make sure all future presidents get two nominees

To emphasize the importance of an election, predict that the following president have the chance to fill one or two vacancies on the U.S. Supreme Court.

But that might not be true within the case of a hypothetical President Kamala Harris. Even if Harris were to win in November 2024 after which be re-elected in 2028, she may not have a probability to reshape the court by filling the seat of a retiring justice, especially a conservative one.

Jimmy Carter was the one one-term president who has not filled a emptiness on the Supreme Court. No president who won re-election has been denied this chance. In contrast, President Donald Trump appoint three judges in a single term.

This inconsistency is one in every of the the explanation why President Joe Biden’s call for Supreme Court reform, which Vice President Harris supportsmust be seen as a smart try and counteract a comparatively recent development that has weakened the power of the people – through their elected representatives within the White House and the Senate – to influence an unelected Supreme Court.

Biden's reform plan, outlined in an opinion piece and speech on the LBJ Presidential Library in Austin, Texas, includes two key legislative elements: Limiting the term of office of judges to 18 years and a “binding code of conduct” for the members of the Court. The first proposal is especially relevant for the longer term composition of the Court and the presidential elections in November.

The place of the Supreme Court in American democracy

While every child in America learns at college in regards to the independence of the Supreme CourtHistorically, judges weren’t isolated from the remainder of the world and didn’t make their decisions with political blinders on.

Instead, they’ve been aligned with the enduring political regimes which have dominated much of American history. Consider, for instance, Thomas Jefferson's Democratic-Republican Party And Abraham Lincoln's Republican PartyEach party won six presidential elections in a row. Franklin D. Roosevelt's Democratic Party won five presidential elections in a row. From 1968 to 1992 Republicans won five of six presidential elections.

The Court's bias toward a dominant regime was of great importance for American democracy. This was the most important reason why political scientist Robert McCloskey concluded in his widely read book: “The Supreme Court of the United States,” first published in 1960, that the justices have rarely “lagged far behind or far ahead of America.” Instead, McCloskey concluded, the court has typically “remained in tune with the mainstream of American life and has rarely overestimated its own power resources.”

Much has modified within the greater than six a long time since McCloskey wrote those words. As I argue in my recent book, “A Supreme Court Like No Other: The Widening Gap Between the Judges and the People”, these changes have undermined the court’s democratic legitimacy since the electoral bond that when existed not exists. Democratic candidates have won a majority of the vote in seven of the last eight presidential elections. Yet six of the nine current justices were appointed by Republican presidents.

One of an important changes was the Length of term of office of judges today. Consider that when Chief Justice John Marshall died in 1835, he set a service record of 34 years and five months that may be surpassed by just one justice in the following 140 years. In fact, from 1789 to 1971The average term of office of the judges was just over 16 years.

Today, nevertheless, the presidents of each parties Choose young nominees – normally around 50 – with the expectation that they may serve for several a long timeAs I write in my book, “If today's justices continue on their current course, Marshall's mark will become commonplace. Assuming all remain on the Court until their 85th birthday – a few months older than the average age of the last five justices to leave the bench – they will have served an average of 33 years.”

No change for one more decade?

Remember that soon after he won his brutal confirmation battle In 1991, on the young age of 43, Clarence Thomas committed to serve until he was 86 years old. Although these words were spoken way back and will never come to pass, they underscore a central concern in regards to the Court's role in American democracy today.

To make clear, allow us to take Thomas at his word and assume for a moment that he’s in a position to and does fulfill the promise he made way back.

This would mean that Thomas on the age of 76 – currently oldest judge – would remain on the Court for one more decade. As noted above, this is just 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 not one of the other eight younger justices before Thomas die or retire. That would mean there can be no further vacancies on the Supreme Court until 2034, when Thomas retires after 43 years – nearly seven years longer than the present record holder, William O. Douglas.

This would also mean that if Harris is elected president in November and re-elected in 2028, she would don’t have any strategy to make changes to the court.

The court and political change

Enabling change is a core element of democracy, but by choosing young, like-minded candidates to serve for a long time, presidents hope to maintain policy decisions away from the ballot box.

Presidents acknowledge this by often saying that their selection for the Supreme Court is probably the most necessary decisions they make within the Oval Office.

Why? Because these presidents understand that their judges will proceed to influence American law and policy long after their presidencies end and the elections they won have faded from our collective memory.

For most of American history, judges served a median of a couple of decade and a half. However, within the last 50 years, just one judge has been appointed— David Souter – served lower than twenty years.

While the foundations of lifetime tenure have at all times been in place, today's judges have modified the terms of that agreement. It was once rare for a judge to serve three a long time; now it's expected.

Biden's reform

Biden's call for an 18-year term limit since the judges need to correct this development and return the court to its historical routine.

With two vacancies every two years, voters will understand the impact their vote for the president could have on the composition of the court. They would know in regards to the upcoming departures and must be informed about what type of justices the presidential candidates have promised to appoint.

Finally, voters not have to sit down back and wonder if an aging judge will survive the following election, because liberal voters voted for Ginsburg in 2020The result might be a court that’s more consistent with the country's democratic traditions.

Given the President’s lame-duck status And Republican control of the House of RepresentativesThe term limits proposal won’t be adopted this 12 months. Nevertheless, it provides voters with a serious basis for his or her decision on candidates.

And as a scholar who examines the American presidency and the Supreme CourtI consider it offers a possibility to offer the Court greater democratic legitimacy.