• FDR attempted to reform the Supreme Court in 1937 after many of his New Deal policies were struck down.
• In a 2005 speech, Biden denounced FDR’s efforts, calling it an “institutional power grab.”
• Biden hopes to implement term limits and a code of conduct for the court.

​In recent weeks, President Joe Biden has renewed the call to reform the Supreme Court by implementing term limits, among other things. Biden’s efforts are not new among presidents – President Franklin D. Roosevelt sought the same goal. 

Doing so today would sow doubt in the institution that needs to be politically independent, much like it did back in 1937 under FDR, said Bill Duncan, Sutherland’s constitutional law and religious freedom fellow, in a recent interview. 

“[Biden]’s saying the court itself, the justices, are not trustworthy. … He’s trying to suggest something kind of like a whisper campaign.” 

In 1937, Roosevelt, after several of his New Deal proposals were struck down, sought to increase the number of justices, hoping to appoint judges that would better align with his policies. 

His proposal was simple: If a currently serving justice was over the age of 70 and had served more than 10 years on the court, then an additional justice could be appointed. At the time of the proposal, that would have increased the court from nine justices to 13. 

In 2005, Biden, then serving as a senator from Delaware, spoke on FDR’s desire to pack the court, calling it “a bonehead idea” and an “institutional power grab.” 

Duncan noted, however, that Roosevelt’s plan was more transparent in his intentions than Biden’s current plan. 

“The Supreme Court, at the time, was pushing back on the president’s proposals,” Duncan said. “[Roosevelt] finally got tired of having his ideas struck down by the courts, so he encouraged Congress to create a bill to add new justices.” 

While Roosevelt pursued reform based on policy, Duncan believes that Biden, in his proposal of 18-year term limits, is making it personal. 

“What Franklin Roosevelt did was say ‘a couple of these justices are ruling the wrong way. We need to get some new blood on the court to think more clearly about this,’” Duncan said. “[Biden], by trying to impose a ‘code of conduct’ on the justices seems to be trying to smear them and then take on the executive branch the ‘supervision’ of the Court.”

For a more in-depth perspective on the Supreme court, review Bill Duncan’s work here.