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.
