Frustrated with the U.S. Supreme Court for blocking his most egregiously unconstitutional actions and legislative proposals, President Joe Biden recently announced plans to impose term limits on Supreme Court justices, according to a call transcript from The Washington Post.

This is certainly not the first time the president or members of his party have called for limiting the third branch of government. And it comes as no surprise, considering the Supreme Court recently affirmed that there is no constitutional “right” to abortion in Dobbs, gutted the administrative state in Chevron, upheld protections for January 6 protesters in Fischer, and affirmed presidential immunity for Donald Trump and others in the future for official actions.

And, because Biden knows that a constitutional amendment requiring term limits would be extremely difficult to enact, he intends to simply ask Congress to enact term limits by law.

There is just one problem with his proposal, though, and it is not that Congress has no appetite for such a law. Article III, Section 1 of the Constitution provides for lifetime tenure for federal judges unless they are impeached for bad behavior: “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour.”

A Blatantly Unconstitutional Idea

The Framers did this because they wanted to insulate federal judges from political pressure or punishment for their decisions, allowing them to decide cases based on the Constitution and the law, not on their future career prospects.

Since “This Constitution … shall be the supreme Law of the Land” (Art. IV, Clause 2), Congress cannot take away the lifetime tenure granted to judges in Article III through legislative action. Only a constitutional amendment could lawfully impose term limits.

Biden’s retort is that “Offices” in Article III refers only generally to any office of federal judgeship, so a Supreme Court justice could be demoted to a lower-court judgeship after a certain number of years; this action would not run afoul of Article III because that judge would still “hold their Office.” But this argument is ridiculous on its face.

Here’s Why

First, the text of Article III specifically refers separately to “the judges, both of the supreme and inferior Courts,” and then states they “shall hold their Offices during good behavior.” The only natural reading of this is that Supreme Court justices shall hold “THEIR” offices for life, and inferior court judges shall hold “THEIR” offices for life.

Second, no one could reasonably argue that demoting a Supreme Court justice to any position on any lower court would be a serious demotion and punishment — precisely the kind that our Framers intended to avoid. If Biden or Congress cannot demote a Supreme Court Justice to a lower court as punishment for deciding a case against them, then by the same language of the same Constitution, Biden or Congress could not do so via term limits, either.

In any event, if Biden succeeded in passing Supreme Court term limits through Congress (which will never happen), the Supreme Court itself would get to decide the constitutionality of such a law (i.e., whether “shall hold their Offices” in Article III means what it plainly says).

Would anyone venture a bet against a unanimous decision (by liberal and conservative justices alike) that term limits cannot be legislatively enacted? I certainly would not.

The point here is not whether term limits for Supreme Court justices is a good or bad idea. The point is that term limits would have to be enacted through a constitutional amendment, which is purposefully and rightly a very hard task, achievable only when there is widespread public support.

The president knows all of this, of course. He knows his proposal is dead on arrival and has no chance of passing Congress, let alone surviving the inevitable constitutional challenge. He is merely making a sad proposal to detract attention from his own senility.

Harry Mihet is vice president of legal affairs and chief litigation counsel with Liberty Counsel, an international nonprofit litigation, education, and policy organization dedicated to advancing religious freedom, the sanctity of life, and the family. He grew up in Communist Romania, where his father pastored seventeen, mostly underground churches, and faced persecution. Harry received undergraduate degrees in political science and criminology from the University of Florida and a law degree from Duke University School of Law.