Biden’s Supreme Court Plan
Some interesting, if unworkable, ideas.
WaPo (“Biden set to announce support for major Supreme Court changes“):
President Biden is finalizing plans to endorse major changes to the Supreme Court in the coming weeks, including proposals for legislation to establish term limits for the justices and an enforceable ethics code, according to two people briefed on the plans.
He is also weighing whether to call for a constitutional amendment to eliminate broad immunity for presidents and other constitutional officeholders, the people said, speaking on the condition of anonymity to discuss private deliberations.
The announcement would mark a major shift for Biden, a former chair of the Senate Judiciary Committee, who has long resisted calls to make substantive changes to the high court. The potential changes come in response to growing outrage among his supporters about recent ethics scandals surrounding Justice Clarence Thomas and decisions by the new court majority that have changed legal precedent on issues including abortion and federal regulatory powers.
Biden previewed the shift in a Zoom call Saturday with the Congressional Progressive Caucus.
“I’m going to need your help on the Supreme Court, because I’m about to come out — I don’t want to prematurely announce it — but I’m about to come out with a major initiative on limiting the court. … I’ve been working with constitutional scholars for the last three months, and I need some help,” Biden said, according to a transcript of the call obtained by The Washington Post.
Term limits and an ethics code would be subject to congressional approval, which would face long odds in the Republican-controlled House and a slim Democratic majority in the Senate. Under current rules, passage in the Senate would require 60 votes. A constitutional amendment requires even more hurdles, including two-thirds support of both chambers, or by a convention of two-thirds of the states, and then approval by three-fourths of state legislatures.
AP (“Biden seriously considering proposals on Supreme Court term limits, ethics code, AP sources say“) adds:
It would mark a major shift for Biden, the former head of the Senate Judiciary Committee, who has long resisted calls to reform the high court, though since taking office he has been increasingly vocal about his belief that the court is abandoning mainstream constitutional interpretation. The details were first reported by The Washington Post.
Any changes would require congressional approval, which would be unlikely in a divided Congress. But with Republican nominee Donald Trump bragging about putting the three justices on the high court who are now part of the conservative majority, Biden’s call for major changes could help animate his voters.
According to the WaPo report, Biden got some of these ideas in a conversation with the eminent Harvard Law professor Lawrence Tribe, who put them in a Guardian op-ed (“How the US supreme court shredded the constitution and what can be done to repair it“) written in response to the Trump immunity decision.
My main takeaways from this shameful decision are three: first, there is a compelling need for supreme court reform, including a plan to impose an enforceable ethics code and term limits and possibly create several added seats to offset the way Trump as president stacked the court to favor his Maga agenda; second, we should start planning for a constitutional amendment of the sort I have advocated in the New York Times to create a federal prosecutorial arm structurally independent of the presidency; and third, we need a constitutional amendment adding to article I, section 9’s ban on titles of nobility and foreign emoluments a provision expressly stating that nothing in the constitution may be construed to confer any immunity from criminal prosecution by reason of a defendant’s having held any office under the United States – and a provision forbidding use of the pardon power to encourage the person pardoned to commit a crime that the president is unable to commit personally.
Amending the constitution to address problems the supreme court creates needn’t take long. When the court prevented Congress from lowering the voting age to 18 in state along with federal elections in Oregon v Mitchell, it took under seven months for us to adopt the 26th amendment to repair that blunder. And the court can overturn its own egregiously wrong decisions quickly, as it did in 1943 when it overturned a 1940 ruling letting states force children to salute the flag against their religious convictions in West Virginia state board of education v Barnette.
I haven’t given much thought to an amendment regarding immunity for officeholders, let alone one that would establish an independent prosecutorial arm. Offhand, the latter strikes me as dangerous and unworkable but all I have to go on is one line. (I’m in a hurry this morning, so don’t have time to look up his old NYT op-eds.)
I am highly skeptical, though, that Congress can impose term limits or an ethics code on the Supreme Court. Article III of the Constitution clearly states that Justices serve “during good behavior.” That has been interpreted for almost 250 years now to mean they have life tenure unless they’re impeached and convicted.
An ethics code is less black and white. Congress clearly has the power to impose rules for lower federal courts, which are creatures of Congress; indeed, Congress has the power to restructure the entire system and even close down parts of it. (Although, presumably, the judges on those courts would still have a right to a post.) While there are groups on the left, like the Brennan Center, arguing that an ethics code for SCOTUS is constitutionally enforceable, it’s decidedly a minority view. Congressional Research Service experts conclude:
If Congress wished to sanction a Justice who had allegedly violated the Justices’ Code of Conduct or another applicable ethical rule, the Constitution would also impose limits. Article III forbids Congress from reducing Supreme Court Justices’ salaries or removing them from office except via the extraordinary and blunt remedy of impeachment. Thus, Congress may have limited means to induce Justices to behave ethically.
They follow this with a point I was going to make myself:
Because the Supreme Court possesses the authority to determine the constitutionality of legislative actions, the Supreme Court itself would likely play a critical role in determining whether Congress could validly impose or enforce ethics rules on the Court. There is limited legal precedent on this issue because Congress and the Supreme Court have historically taken an approach focused on interbranch comity, declining to test the full extent of their powers in order to avoid conflict between the legislative and judicial branches. Thus, Congress has at times deferred to the Court to set court rules and procedures, and the Court has at times acquiesced to ethics legislation without formally addressing its constitutionality. It is therefore difficult to predict whether or how the Court might address the constitutionality of possible Supreme Court ethics legislation.
I would dispute only the last sentence of that: it’s not at all difficult to predict that the Court would strike this down by at least a 6-3 margin, if not unanimously.
So where the ideas that Presidents have broad immunity from prosecution and that the Special Counseled is unconstitutional (not to mention that the 14th amendment doesn’t really mean what it says it means. ). I’m sit waited to figure out why corporate personhood is still a thing since the framers the 14th amendment at the time were definitely not thinking about corporations. I’l bet you can find one instance of anyone uttering the word corporation during the debate of the the ratification of the 14th.
The law, it would seem, is simply what SCOTUS thinks it is. It’s always been that way but it seemed to me there were sill a modicum of respect for precedent in days past.
I am surprised that Congress hasn’t gotten around to using its ultimate power to reign in both the Judicial and Executive Branches: the power to fund. May not be able to reduce salaries but Congress could decline to fund the Supreme Court bureaucracies and even the buildings, power, and other utilities. Same goes for the Executive Branch. Chief John Roberts may decline to testify citing separation of powers but Congress can go: “Fine! Go sit in darkness”.
Is John Roberts the Roger Taney of our times? Discuss!
@Scott: As a matter of fact, that very idea occurred to me after the ever-infamous Presidential immunity decision was handed down.
The 9 justice number came from the number of circuits at the time. Now we have 13 circuits, so I will reiterate my idea here: Retain lifetime appointments, expand SCOTUS to 13 members, and implement rotating 7-year SCOTUS duty by representatives from each of the 13 circuits, with judges coming off SCOTUS duty returning to their circuit courts (or retiring, or whatever they wish to do).
Each of the current seats can be “associated” with an existing circuit court (1-9), and then circuits 10-13 would each nominate somebody from their bench to the Supreme Court. We could even agree that the existing members of the Supreme Court would be allowed to remain on the court for a lifetime, but that their replacements would come from their assigned circuit.
This seems like an excellent compromise that solves nearly every SCOTUS problem we have seen in recent years.
Chief Justice Roberts does not seem to have read any history. A system of law will only be adhered to when people have respect for it and its practitioners. For hundreds of years, people have paid respect for the Supreme Court only when it hasn’t gotten out over its skiis. That notorious case M.vs M. establishing the sovereignty of SCOTUS was a legal jiu-jitsu they managed to pull off only because the more “powerful” position was the one where SCOTUS didn’t have to actively enforce any decision.
The more arbitrary the judgments coming out of the Supreme Court and the more they seem to be nothing more than a rubber stamp legitimizing the whims of the rich and the powerful, the less actual authority they will in fact have. There’s not much SCOTUS can in fact do if a sizable percentage of the U.S. population at any point decides to not listen to it.
@Dgirl: When “conservatives” lose in the Supreme Court, ordinary people win (Loving v Virginia, Brown v. Board of Education, Reynolds v. Sims).
When “conservatives” win in the Supreme Court, ordinary people lose civil rights, government corruption is encouraged, and corporations gain power (Chevron, Southwest v. Saxon, Burwell v Hobby Lobby, Citizens United v. FEC).
The stakes are very, very different. It’s Exxon/Mobil’s corporate profits vs. a Trans kid’s right to live.
@Dgirl: @Tony W: “Conservatives” hardly accepted the supposedly liberal Court. The John Birch Society was putting up “Impeach Earl Warren” billboards in the 60s. More substantively, Koch money astroturfed the Federalist Society into existence over 40 years ago. The Singers and Crows have been providing “gratuities” for years.
And one should note that the “liberal” Court pretty much legitimized changes already occurring spontaneously within society. Roe, for instance, reflected that abortion had become widely accepted. To get a Court that reflects “conservative” views the wealthy had to buy it.
I think one of the bigger issues is the push for younger and younger judges at all levels since they are lifetime appointments. We had people in their 30s put into lifetime appointments that are unelected and wield lots of power.
Steve
@Dgirl: Lol, wut? The balance of the Supreme Court has leaned conservative since 1970, defined by whether a Democrat or Republican nominated each justice: Ideological leanings of United State Supreme Court Justices
And as others have mentioned, Republicans have *still* complained and threatened action. In short, you have no idea what you are talking about, i.e. you are a typical Trump voter.
I’m wondering, what liberal court?
The last 4 chief justices (1953-present; Warren, Burger, Rehnquist, and Roberts) were all appointed by Republican presidents (Eisenhower, Nixon, Reagan, and Bush the younger).
So maybe prior courts actually interpreted the law, rather than engage in motivated reasoning for their chosen political positions, or whatever their patrons order.
@Dgirl:
Blatant lies are fun.
@Franklin:
Yep. And took action to create the current corrupt MAGA extremist court: McConnell invented out of thin air a new rule barring election year SCOTUS appointments to deny Obama a pick in 2016, then rewrote his made-up rule to force through a Trump justice moments before Election Day 2020.
But conservatives don’t rewrite the rules according to conservatives. Lol in what alternate reality?
Near-impossible for today’s Republicans to do politics without hypocrisy and lies. That explains why they put pathological lying rapist Trump in the White House.
@Dgirl:
It’s not that simple. For one thing, it ignores that the ideology of individual justices shifts over time. In fact, since GWB, one of the consistent conversations whenever a GOP President nominates a justice has focused on whether a nominee will drift left.
Sometimes drift in either direction is in response to the leaning of a newly appointed justice, particularly if the appointment is for Chief Justice (or elevated in the case of Rehnquist).
I am ambivalent about links to data here, because the sets are incomplete–it only includes cases SCOTUS actually heard. Nor do we know which justices voted to grant cert. Also, the data ultimately has to be mapped to ideological scores, which are imperfect. But the data we do have can still be used to evaluate assertions about the ideological leanings of the Court.
But the models may not be perfect, but they are superior to petulant partisan comments.
Here is a chart found in this 538 article. The data used is based on research by Martin and Quinn.
The median justice has been to the right of center for the vast majority the terms from 1935-2010. And the period wherein the median justice was to the left was the Warren Court. Earl Warren was appointed by Eisenhower.
Also keep in mind that Eisenhower was accused of Communist sympathies by the far right during his Presidency. Besides being patently absurd on its face, it illustrates that for some people, anyone who would criticize Atilla is liberal or pink or red.
Hate to break it to you, but your comment is not based in reality.
To recap – except this time accurately:
Liberals spend centuries losing legal fights because of ultra-conservative Supreme Court majorities and accept it.
Conservatives lose individual cases even during periods when they hold the majority [and win the majority of corporate corruption, monopoly and pollution cases in all those periods] and because of those few losses, respond by demanding to eliminate all rules and gerrymander all districts because they are snowflakes who can’t tolerate losing anything.
That truly does sum up American politics for the last 250 years.
@Kurtz:
GOPs fear a Republican appointed justice might drift left, as some in fact have. What would cause a good Republican to drift left? Logic, decency, and common sense, which carry more weight once one has an irrevocable appointment to the pinnacle of one’s profession and can abandon careerism. This is why Leonard Leo has been arranging billionaire handlers for the current GOP justices.
@gVOR10:
They fear that, yes. But I think everyone–right and left–probably overestimate how often and how many justices drift left. The charts themselves can be misleading. For example, the Quinn, one of the originator of the scores used in the linked charts cautions that the scores should be viewed ordinally rather than cardinally. (One reason using the median justice works better than just looking at a spaghetti chart.
Personally, my view is that ideology is difficult enough to measure with one number, especially in the context of political and legal decision-makers.
I highlighted some issues in my comment. There is another underlying problem as well: justices do not necessarily agree on the proper role of SCOTUS in society and politics.
Additionally, we know relatively little about the cajoling and jockeying among justices that go on behind closed doors.
I also suspect that some justices have been influenced by perceived risk to social cohesion as much as strict legal interpretation.
There’s not much the Congress can do if a sizable percentage of the U.S. population decides not to listen to it. Though that sizable population would likely be able to change Congress.
But the same goes for the Executive. Yes, the President could send forth is offices to eat out the substance of the People, but nothing says they’ll be able to do that except in force out side their secure operating bases. And again, the President, along with his minions, can be changed by the People.
The on thing I suspect has a shot is using an Amendment to reverse the decision to grant immunity to POTUSes. It would be a hard issue to argue against to an American people raised to believe that nobody is above the law. Can’t imagine a serious resistance to that should it ever get rolling, and I like the affect it might have on Roberts. He is reputed to be deeply concerned about “his” court’s legacy, and being the only modern court reversed by a constitutional amendment will set something in stone on that issue. Moreover, I suspect Roberts would be more careful in the future lest he get another public pantsing to go in the history books. We are going to be stuck with him for some decades to come.
All the stuff that requires the legislative process? Unless a wave election gives someone 2/3s of the Senate and a majority in the House, no chance.
@dazedandconfused:
Taking back the House and keeping the Senate, big ifs, might work if Schumer is willing to scuttle the legislative filibuster. There was a lot of talk about it before the midterms, effectively shut down by Sinema and Manchin (it’s worth pointing out not many others said whether they favored it or not).
It’s not easy to decide to do so, especially since there’s no coming back from the decision.
But assuming a second Biden term (bigger if, I know), and Democratic control of Congress, a lot of legislation could be passed to cement things like abortion, voting rights, contraception, minority rights, etc. Maybe even a court expansion that does not look like a power grab (say along with a general expansion of the federal judiciary, in particular immigration courts).
The big problem is what happens if/when Congress is lost in 2026 (very likely, especially if the Convicted Felon is still alive and free by then), and more important if/when the White House is lost in 2028 (again, very likely). The GQP, after all, never nuked the legislative filibuster, nor attempted a reform or repeal of the ACA through regular order.
@Kathy: The GOP most certainly did attempt an appeal of ACA that would have succeeded with a simple majority. I believe this was because of the “budget vehicle” the rules allow to be non-filibusterable. Remember when John McCain walked out of the cloak room and gave a thumbs down?
I think the window for that has probably passed. Too many people on it now, many of whom probably vote Republican.
They could try other stuff, though. I think a nationwide ban of abortion might well be a thing, though there are Republicans who understand how badly that would go for them. Probably a nationwide ban after 15 weeks might be something more politically viable for them.
@Jay L Gischer:
I do. He complained such a repeal should be done through regular order, which I parroted above.
As I understand, it means holding hearings in the relevant committees (if necessary), drafting specific legislation, and holding a vote on it. The GQP never tried to do that.
Any attempt would have been filibustered in the Senate, but Mitch never raised the prospect of removing the filibuster rule (though on and off the Convicted Felon ranted about it).