Supreme Court

Steven Calabresi | 5.8.2025 8:38 PM

Democrats are accusing President Trump of undermining judicial independence by not following court judgments in immigration cases. Put aside that, as of yet, it is far from clear that any judicial orders have been violated. Even under the worst assumptions, what Trump is doing to the independence of the federal courts is far less serious than what the Biden-Harris Administration tried to do to the independence of the federal courts.

On April 9, 2021, President Biden created a "Commission" to examine "reforming" the "membership" of the U.S. Supreme Court. This action alone is a more serious threat to judicial independence and to the rule of law than are any of the actions with respect to the courts taken so far by President Trump. Imagine how the Democrats would react if President Trump were faced with a liberal Supreme Court majority and therefore created a Commission to examine "reforming" the "membership" of the Supreme Court. Democrats would say fascism was around the corner.

Among the ideas the Biden Commission seriously considered were imposing 18-year term limits on Supreme Court justices by passing a statute. This is an idea which I once favored for policy reasons, but which I concluded decades ago in a law review article could only be done by a constitutional amendment. I have subsequently concluded that 18-year term limits for Supreme Court justices are also a bad idea, as a matter of policy, because every two-term president would get four Supreme Court appointments, which is almost always enough power to change the jurisprudential balance on the Supreme Court.

Nonetheless, after Joe Biden withdrew his presidential candidacy last summer because of his dismal performance in a nationally televised debate, he gave a speech in Texas endorsing a statute term limiting the Supreme Court justices (a proposal that was understood as calling for legislation, not a constitutional amendment, in part because in the same speech Biden called for a constitutional amendment to overturn the Supreme Court's presidential immunity decision in Trump v. United States (2024) while not calling for a constitutional amendment to change the membership of the Supreme Court). Senator Sheldon Whitehouse's bill to do this provided for eliminating the Senate filibuster as to his 18 year Supreme Court term limits bill. Vice President Kamala Harris, who became the Democratic Party's nominee for president, immediately endorsed Joe Biden's plan for statutory court packing via term limits. As Senator Whitehouse's bill makes clear, the plan was to eliminate the Senate filibuster and ram the term limits, i.e., court packing, through both Houses of a narrowly divided Congress despite the absence of any popular mandate to make such a sweeping change, which would have trashed the rule of law and demolished the independence of our life tenured judiciary.

The size of the Supreme Court has been fixed at nine justices since 1869, 156 years of our 236-year history as a constitutional republic. An exhaustive survey by University of Wisconsin law professor Joshua Braver conclusively demonstrates that there is quite simply no tradition of Supreme Court packing or radical membership changes in American constitutional history. President Biden's actions and speeches after he withdrew from the presidential race, which were endorsed by Kamala Harris, were a flagrant attack on the independence of the U.S. Supreme Court and on the rule of law itself. They were un-American and smacked of the behavior that goes on in banana republics like Argentina, which are devoid of the rule of law.

Under Biden's proposal in July 2024, a new seat on the Supreme Court would be created by statute, and not by a........

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