Opinion | Supreme Court Reform Is in the Air

Earlier this year, two prominent Democrats released two different plans for Supreme Court reform.One came from Joe Biden and is worth serious thought.

The other, which came from Senator Ron Wyden (and a number of other Democratic legislators), would escalate the nation’s judicial wars and perhaps even harm our nation’s constitutional order.Biden is right to propose term limits for Supreme Court justices; Wyden is wrong to propose adding justices to the Supreme Court.I’m raising this issue in part because fear of court packing is one of Republicans’ most potent arguments to keep conservatives from crossing the aisle and voting for Kamala Harris — and because, in her first run for president, Harris herself indicated that she was “open” to expanding the court.

She has since endorsed Biden’s plan for term limits.She was wrong in 2019, and she is right in 2024.This newsletter is going to focus on court packing and term limits, not other forms of court reform (such as new ethics proposals) because the size and composition of the court is far more important than even the most aggressive ethics reforms in Congress.

But before we judge the merits of the competing proposals, it’s important to understand exactly why the court needs reform.The problem with the current court isn’t with its decisions (even if I disagree with a number of its recent opinions).Rather, it’s with the way the political branches have gamed the system in a manner that complies with the letter of the Constitution but violates its spirit.The purpose of lifetime tenure is supposed to be to secure judicial independence, not to secure decades of ideological advantage on the court.

The purpose of granting the Senate the confirmation power is to offer a thoughtful check on the president’s judgment, not to cripple the president’s appointment powers unless his or her party also controls the Senate.When you combine a constitutional misjudgment with senatorial shortsightedness and extr...