Biden’s Supreme Court Reform Plan Redux
Perfectly sensible suggestions that are unconstitutional, politically infeasible, or both.
Twelve days ago I reacted to a trail balloon version of “Biden’s Supreme Court Plan.” He has now rolled out a quasi-official version via a WaPo op-ed. It, alas, does not satisfy my concerns about feasibility.
First, I am calling for a constitutional amendment called the No One Is Above the Law Amendment. It would make clear that there is no immunity for crimes a former president committed while in office. I share our Founders’ belief that the president’s power is limited, not absolute. We are a nation of laws — not of kings or dictators.
This is simply not passable—there’s just no way that 2/3 of the Congress goes along with this—but, otherwise, I broadly support a well-crafted version of those that prevents the criminalization of ordinary policy disputes.
Second, we have had term limits for presidents for nearly 75 years. We should have the same for Supreme Court justices. The United States is the only major constitutional democracy that gives lifetime seats to its high court. Term limits would help ensure that the court’s membership changes with some regularity. That would make timing for court nominations more predictable and less arbitrary. It would reduce the chance that any single presidency radically alters the makeup of the court for generations to come. I support a system in which the president would appoint a justice every two years to spend 18 years in active service on the Supreme Court.
I think this is a good idea, but it would almost certainly require another Constitutional amendment. As noted in my previous post, there’s simply zero doubt that Article III gives Supreme Court Justices lifetime appointments and the sitting Justices would, likely by a 9-0 margin, vote to preserve that prerogative by striking down such a law.
Third, I’m calling for a binding code of conduct for the Supreme Court. This is common sense. The court’s current voluntary ethics code is weak and self-enforced. Justices should be required to disclose gifts, refrain from public political activity and recuse themselves from cases in which they or their spouses have financial or other conflicts of interest. Every other federal judge is bound by an enforceable code of conduct, and there is no reason for the Supreme Court to be exempt.
While it’s absolutely “common sense,” I remain highly skeptical that Congress has the authority to impose such requirements on a co-equal branch. I suppose that we could roll this all into the amendment but, alas, it’s next to impossible to amend the Constitution on matters of any controversiality.
Given that the Constitution doesn’t state “lifetime” but instead says “for a term of good behavior” and gives impeachment power to Congress, it seems perfectly reasonable to think this also gives Congress the power to determine a code of ethics which defines “good behavior”.
Especially since the most common complaint about impeachment is that it is a politically charged partisan endeavor, an impartial and objective code of ethics seems like a good idea and in keeping with the intent of the Constitution.
That’s my reading of Article III as well, but there are a lot of other people who assert its more a judgeship for life (ie during good behavior), rather than a particular position.
I’d go along with that, except, as you mention, there are at least 6 justices who’d lose too much income if that were not ruled unconstitutional. Mone uber alles and all that, well.
An amendment limiting SCOTUS terms won’t ever pass while the GQP’s pet court remains its pet court.
I see an easier time passing an amendment striking down executive branch immunity. It would be hard to make the case to the public that a president needs to commit crimes, or plain break laws, in order to fulfill the duties and obligations of office.
Their best bet would be to focus on foreign policy matters, especially as regards war. A lot fo what great powers do in such matters, and have historically done, smacks of high crimes. See many coups in the Americas, the opium wars, the unequal treaties, etc.
Your subtitle says it all…
In theory, the Constitution details a process for amending the nation’s plan of government, while in practice this is impossible with the nation’s structure of government. The perfectly sensible is beyond all reach. Exceptional Nation, indeed.
I would relish hearing a superior judicial thinker, say Alito, teach me the originalist’s truth that such arrested development is what the Framer’s had in mind with Article Five.
IMO the amendment part is entirely feasible. It’s pretty hard to argue against and voting against it is fraught. Particularly fraught if there is a D in the White House, as the Rs would have to explain to their wing nuts why they hold that Satan should be immune to criminal prosecution.
This nation is deeply steeped in the idea that no man is above the law, and the SCs ruling can be reversed. Just my opinion,
I would like to add that effecting change, especially institutional change, takes time, effort, and money. But above all it first has to be attempted.
I’m reminded of this quote from Babylon 5:” Folks have been conned into thinking they can’t change the world. Have to accept what is. I’ll tell you something, my friends, the world is changing every day. The only question is, who’s doing it?”
The quote is not word for word applicable. The constitution certainly doesn’t change every day. But the exhortation is to try, because if you don’t even make the attempt than you definitely won’t succeed.
On the one hand, this is election grandstanding. On the other hand, I’m old. I’ve watched cycles of change. Change takes time. The first step, as they say, is recognizing you have a problem. I doubt Biden will fix the Court, but as people realize the Court is human and political, as we have a few more Justice scandals, a few more outrageous decisions, there will come a consensus that something has to be done, and eventually something will be. This is a necessary first step. And if it buys Harris a few votes in the near term, great.
The decision Roe vs. Wade was handed down in 1973. And the right kept that issue alive for 50 years until they finally got an opportunity to reverse it. There was a lot of talk of a constitutional amendment for a long time.
Similarly, on the left there is universal health care, which has been alive as a concept for at least as long.
I don’t see why this can’t be held as a long-term goal. I think that could work.
SCOTUS decided in 2000 who would be their co-equal prez. They’ve decided individuals can or cannot be members of their co-equal congress. The bitch is SCOTUS gets to decide. A different SCOTUS might be more amenable to reason. Vote Blue. Also, too, congress gets to decide co-equal SCOTUS’ budget. Perhaps arms could be twisted.
Geezus, Doc J. You sure know how to piss on hopes and dreams. Lol
@JamesJoyner:
The tacit conclusion to that statement is, there are no laws that Congress passes by which SCOTUS is bound to abide. Is there any U.S. law that SCOTUS, as an institution, is exempt from? Congress passes laws, The Exec enforces/administers them, and SC interprets their constitutionality. Every ass within and subject to the jurisdiction of the United States is bound by its laws.
Isn’t the Constitution whatever SCOTUS (and 45-47) say it is now?
@Blue Galangal:
Chief Justice Marshall in Marbury vs Madison, opined that “It is emphatically the province and duty of the judicial department to say what the law is.”
This hasn’t changed. Except now it is the province and duty of Leo & Crow to tell the judicial department what they should say the law is.
@Jay L Gischer: Indeed. And the process goes 1) point out that something is wrong/dysfunctional, 2) suggest a solution, 3) ignore the people who say it’s impossible to do because of X, Y, and Z, 4) wash, rinse, repeat, for a long as it takes.
But without steps one and two, taken by Biden this past week, you can’t get to 3, 4, and eventually 5. Biden’s not overcome by dementia (yet). He knows that he won’t succeed, nor will Kamala, nor the Democrat after her, nor the Democrat after…etc. He also knows the best way to get nothing done is to not try to do anything. We’re at try and the race has started. I won’t live to see the change, but somebody will if people who want change will take their cue from evangelicals and, ironically enough (ETA: considering who my first example was), LGBTQs who have had to do the same thing.
If you’re not up for a slog, well and good, but get out of the way at least.
For the No President Os Above The Law amendment, I think a Presidential Crime Spree by Biden could help tip the balance.
He’s too old and frail to be a cat burglar, and it wouldn’t be part of his official duties anyway, but there are bound to be some good crimes he can get up to.
@Chip Daniels: Congress clearly has the power to impeach Justices for high crimes and misdemeanors. If a majority of the House thinks Thomas’ arrangements with his benefactors constitutes an impeachable offense, they can impeach him. If two-thirds of the Senate agrees and votes to remove him, they have that power. But I don’t think they can enforce a law requiring Justices comport themselves as Congress wishes.
@Scott F.: The Framers were decidedly anti-majoritarian, preferring strong checks on Federal power to getting things done. But they also didn’t envision a continental power of 50 states, either.
@DeD: As individuals, SCOTUS Justices are bound by the same laws as the rest of us. But Congress doesn’t have the power to tell POTUS or SCOTUS how to do their jobs. Lower-level employees and courts, who are the creatures of Congress? Yes. But not POTUS and SCOTUS.