Could Jurisdiction-Stripping Prevent SCOTUS Invalidation of Biden's SCOTUS Term Limits Proposal?

A little less than two weeks ago, I wrote an essay on this blog about President Biden's proposed Supreme Court reforms. As I acknowledged in it, there is no realistic chance of any of them being enacted into law in the short term, but they may nonetheless be useful to start a discussion and to mobilize Democratic voters. The main focus of my prior essay was on the methods that could be used to enact each of the proposals in the event that there is political will to do so.

To recap: the proposal to overrule the sweeping immunity from criminal prosecution that the Supreme Court gifted to Donald Trump former Presidents is styled as a proposed constitutional amendment; the proposal to apply the judicial code of conduct that currently binds lower court judges to SCOTUS Justices is styled as a call for legislation by Congress; and the proposal to apply 18-year term limits for Justices is unclear whether it would be attempted by ordinary legislation or via a constitutional amendment. As I explained in that earlier essay, there are plausible grounds for arguing that term limits could be accomplished through ordinary legislation or, alternatively, that they could be imposed only by a constitutional amendment. I also noted that while I think a Congressionally imposed code of ethics for SCOTUS Justices would be clearly constitutional, I would not rule out the possibility of a majority of the current Supreme Court invalidating such a code.

Short of a constitutional amendment, is there a way to prevent SCOTUS from invalidating term limits and/or a Congressionally mandated binding code of ethics? The short answer is yes. The longer answer is a bit more complicated. I'll discuss only term limits, given my view that a constitutional challenge to a Congressionally mandated ethics code would be very weak.

Let's start with the easiest way that Congress and the President--through ordinary legislation and without a constitutional amendment--could ensure that SCOTUS does not strike down term limits. Congress could expand (pejoratively, "pack") the Court and then the President could nominate and the Senate could confirm Justices who are very likely (because they were pre-screened) to uphold term limits if challenged. How many Justices would need to be added would depend on how many sitting Justices could be expected to vote to invalidate term limits, but Congress and the President could essentially ensure the outcome they want by adding, say, 10 seats.

No doubt astute readers are doing a spit-take. That's the easy way?! Well, yes, it's easy only in the sense that it's clearly constitutional. Everybody accepts that Congress can increase the size of the Court. And even during the controversy over FDR's Court-packing plan, no one came right out and claimed that the plan was unconstitutional. At most they argued that it violated a very very strong quasi-constitutional norm. (I discussed this phenomenon at pages 78-81 of this book chapter.)

But Court expansion is not easy in any practical sense. It's notable that President Biden did not include it in his package of proposals, even though some members of the President's Commission on SCOTUS reform thought it would be wise to attempt Court expansion. (At pp. 83-84 of its final report, the Commission states that "there is profound disagreement among Commissioners over whether adding Justices to the Supreme Court at this moment in time would be wise.")

Moreover, Court expansion would undercut and substantially delay the implementation of term limits, which, in the President's proposal (as is standard in the literature) works to give each President two appointments because it assumes 18-year terms and nine Justices. To uphold term limits via Court expansion would require a subsequent Court shrinkage. That's possible--at least after a Justice retires (whether or not due to the term limit)--but is extremely awkward. In the end, using Court expansion to protect term limits is backwards. Court expansion is the much heavier lift.

All is not necessarily lost, however. There is another possible way to prevent SCOTUS invalidation of term limits: jurisdiction stripping. Article III authorizes Congress to make "exceptions" to the Supreme Court's appellate jurisdiction (and a challenge to term limits would not fall within the Court's original jurisdiction). So Congress could write a statute that: a) imposes term limits; and b) forbids the Supreme Court from exercising appellate jurisdiction over any case challenging those term limits.

How might such a case even arise? That's tricky. In order for a term limits law to be valid, at a minimum, it would need to permit a term-limited Justice--who would then be sent to a lower federal court--to continue to draw the same salary they received while an active Justice, lest the law run afoul of the express salary protection of Article III. So a holdover Justice would have to still be paid. A case could arise if a Justice whose 18-year term is up refuses to leave the building when their replacement arrives. Either the Marshall's office would remove the holdover Justice and the holdover would then sue for reinstatement or, if the holdover were allowed to stay, the new Justice would sue to effectively order the holdover out.

But where? Presumably in either a state court or a lower federal court. Such a court might uphold the term limits, in which case the stripping of the SCOTUS appellate jurisdiction would prevent SCOTUS from hearing the case--unless SCOTUS found the jurisdiction stripping provision itself to be unconstitutional.

Would it be? That implicates a hotly contested question. On a broad reading of Ex Parte McCardle, Congress's power to strip appellate jurisdiction from SCOTUS is virtually unlimited (save for stripping statutes that violate some other constitutional provision, such as a law stripping jurisdiction in cases involving all but white plaintiffs, for example, which would violate the equal protection component of the Fifth Amendment's due process clause).

Yet there is a robust literature challenging the broad reading of McCardle as inconsistent with the basic architecture of the Constitution--at least where Congress deploys jurisdiction stripping to impair what Henry Hart called the "essential functions" of the Supreme Court or to favor a particular outcome. In Patchak v. Zinke, a four-Justice plurality (Justice Thomas joined by Justices Breyer, Alito, and Kagan!!) seemed to embrace the broad reading of McCardle even in what the dissent (CJ Roberts, joined by Justices Kennedy and Gorsuch) thought was very much a statute that directed a particular result. Whether the broad reading of McCardle would command five votes on the current Court--not to mention the Court that would need to face the question more than 18 years from now on the assumption that sitting Justices would be grandfathered out of term limits--is anybody's guess.

Of course, even successfully stripping just the Supreme Court of appellate jurisdiction leaves open the possibility that a lower federal court or a state court might declare term limits unconstitutional. Can those courts also be stripped of jurisdiction? Congress can take away jurisdiction from the lower federal courts under the so-called Madisonian compromise that allowed Congress to "ordain and establish" those courts "from time to time"--although stripping both lower federal courts and SCOTUS of jurisdiction over some category of cases would run afoul of a limit articulated by Justice Story in his (confusing) opinion in Martin v. Hunter's Lessee and revived (and tweaked) by Akhil Amar in a 1985 article. Under this view, Article III's vesting of jurisdiction in the federal courts to hear "all cases" arising under federal law means that some federal court must have jurisdiction over every federal case.

Suppose one rejects the Story view. Even so, stripping all courts, both state and federal, of jurisdiction over some particular category of cases raises further questions. There is really only one case on point, the 1948 Second Circuit decision in Battaglia v. General Motors, but there is debate over what exactly that decision means and, in any event, it's unlikely that the relevant litigation would end up in the Second Circuit, which is the only place where the ruling is binding precedent.

I could say a whole lot more about this subject, but given the extremely hypothetical nature of the inquiry, instead I'll stop there and refer readers interested in learning more about jurisdiction stripping to my 2018 article in the Texas Law Review and the various articles I cite therein or to Chapter 4, Part I of the Presidential Commission report. You're welcome.