In his waning days in office, lame duck President Joe Biden on July 29 has proposed that Supreme Court justices be given 18-year term limits thus ending the current lifetime tenure of the nation’s highest court.

Biden stated, “The bipartisan commission I convened analyzed various term limit structures.  Based on their report, I believe the best structure is the 18-year term limit.  That would help ensure the country would not have what it has now: an extreme court that’s the product of an attack on the confirmation process that’s been… weaponized by those seeking to carry out an extreme agenda for decades to come.”

There’s just one problem, which at least some of the members of the commission were well aware of, is that such a plan if enacted by Congress would be wholly unconstitutional, and thus, could only be done by a constitutional amendment, which Biden failed to mention. Perhaps because other members of the commission thought that Congress should just go ahead and do it anyway.

According to the commission, “Members of the Commission are divided about whether Congress has the power under the Constitution to create the equivalent of term limits by statute. Some believe that a statutory solution is within Congress’s powers. Others believe that no statutory solution is constitutional…” Why?

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This was elaborated on, with the commission stating, “Opponents point to the Constitution’s provision that judges serve for ‘good Behaviour,’ which they regard as providing for life tenure, as one of only two express protections of judicial independence.”

The provision in question is Article III, Sec. 1 of the U.S. Constitution, which states, “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour…”

So, judges and justices could presumably be impeached for bad behavior, or they might resign, or they could die in office, but they cannot have term limits under the constitutional scheme.

That this is widely accepted is beyond question, but it was explicitly stated by the Framers including Alexander Hamilton in the Federalist No. 78, when he wrote, “with regard to the judges, who, if they behave properly, will be secured in their places for life…”

And why? Hamilton says an independent judiciary is designed explicitly to protect minority rights in the republic: “This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.”

Even Congress.gov’s webmaster is well aware of this fact, with its explanation of Article III, Section 1 stating, “Article III, Section 1 provides that federal judges hold their offices during good behavior. This standard, borrowed from English law, ensures that federal judges hold their seats for life, rather than set terms or at the will of a superior.”

And why? Congress.gov instructs, “the Good Behavior Clause protects federal judges from removal for congressional disagreement with legal or political opinions.”

The idea was to establish an independent judiciary that would not be concerned with whether their opinions would be widely popular, and would focus their energies on simply adhering to the Constitution and the laws made pursuant to it. This is standard civics that we teach to children.

Biden has also supported packing the Supreme Court beyond its current nine justices so that it delivers the opinions that he and his party agree with. Prior generations and electoral fortune had resulted in liberal majority in past decades, but now power has shifted, with Republicans having appointed six of the nine current justices.

So, Biden’s plan, term limits, packing the court plus his proposal for a legal code of conduct for the Supreme Court — an attempt to water down “good behavior” beyond crimes and misdemeanors — is to deconstruct the carefully laid plan of the Framers so as to politicize the judiciary. They’d need to consider whether their opinions might get them kicked off the court.

This would permanently damage the separation of powers and making courts little more than rubber stamps for an oppressive majority, since opinions that apply constitutional limits to the exercise of power by Congress, the President and the states could later become grounds for removal.

A great example is the Supreme Court’s recent decision limiting the power of the executive, judiciary and the states to prosecute former presidents for official acts — but notably not for unofficial acts — taken while in office.

Here, Biden wants a constitutional amendment so that signing a bill into law or making an appointment or another constitutional or official act could later be declared to be a crime by federal and state prosecutors. The Court decided that in essence the executive cannot prosecute itself for official acts, not because doing so was popular, but because the decision was essential to the separation of powers.

The Supreme Court and lower courts need that latitude to maintain the constitutional balance, to in the words of Marbury v. Madison, to “say what the law is.” The moment justices and judges can no longer do that without fear of reprisal is the moment a very critical safeguard for limited government and the rule of law vanish before our eyes. Be careful what you wish for.

Robert Romano is the Vice President of Public Policy at Americans for Limited Government Foundation.

Cross-posted with The Daily Torch

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