Better late than never
Biden proposes reforms to a Court in desperate need of them.
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Though a lot of people will probably scorn it as too little too late, President Joe Biden just called for substantial court reform. However, much like the adage “the best time to plant a tree was 20 years ago. The second best time is now,” even if court reform should have happened long ago, the second best time for Biden to kick things off is immediately.
Writing in the Washington Post and in a speech at the LBJ Presidential Library, Biden called for three specific reforms. (Watch a clip of him detailing his proposals below.)
First, a proposed constitutional amendment called the No One Is Above the Law Amendment. This would undo the shocking blanket immunity that the US Supreme Court gave Donald Trump earlier this year.
Next, he’s calling for term limits, whereby a president would appoint a justice every two years, to serve a maximum of 18 years on the Court.
Finally, Biden is asking for the Supreme Court to abide by a binding code of ethics, rather than the vague advisory code of conduct they currently have.
The latter two proposals would not require a constitutional amendment but would require passage by both houses of Congress. Democrats do not currently control the House, and getting anything through the Senate requires Republican support to pass the 60-vote threshold. Those things are obstacles, yes, but that doesn’t mean Democrats shouldn’t try.
Passing a constitutional amendment is an even heavier lift. Both the House and Senate must propose the amendment by a two-thirds vote, or two-thirds of the states may request a convention be called to propose the amendment. Then, it must be ratified by three-fourths of the states.
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In theory, a proposed constitutional amendment that made clear the president is not above the law should be a slam dunk, since the entire American democratic enterprise rests on the notion that presidents are not kings and are subject to the laws that bind the rest of us. But in reality we know that MAGA Republicans are fine with Trump being above the law.
Term limits and staggered appointments should also be a slam dunk. Very few other democracies have lifetime appointments, and 49 of 50 states limit years of service on the state supreme courts in some fashion. Term limits would ensure that every president got to nominate two justices per term, rather than the current lopsided system that has allowed right-wing presidents to create a right-wing court despite not commanding the majority of the votes.
How we got here
The Court’s current composition is the product of minoritarian rule, the oddities of the Electoral College, and the steadfast refusal of Sen. Mitch McConnell to allow President Barack Obama to fill Justice Antonin Scalia’s seat in 2016.
Republicans have won the popular vote only once since 1988, but George W. Bush and Trump got to name five justices to the Court nonetheless. Put another way, since Richard Nixon was first elected in 1968, 20 people have been appointed to the court, and Republican presidents named 15 of them. Term limits also ensure the Court would have a diversity of age, experience, and political views rather than its current status as an Ivy League Federalist Society outpost.
And of course, a binding code of ethics makes sense to literally everyone except the conservative justices, their billionaire friends, and their political patrons. If the members of the Court are expected to follow an advisory, aspirational code, it makes no sense to say that making that code binding and consequential is unfair.
Despite Republicans rallying to back Clarence Thomas’s prodigious appetite for ethically dubious gifts from billionaires or Samuel Alito’s taste for insurrectionist-adjacent flags, no one has ever articulated how the business of the Supreme Court would be compromised if Thomas and Alito couldn’t thumb their noses at the country.
Leonard Leo’s response to Biden’s proposals is highly telling. As the chairman of the Federalist Society, the hard-right legal organization from which Trump drew many of his federal court appointees, Leo is notable not only for his staunch commitment to stuffing the federal courts with conservatives but also for his secret largesse in lining the pockets of Ginni Thomas, wife to Justice Clarence Thomas. Nonetheless, Leo’s statement opposing court reform insisted that “no conservative justice has made any decision in any big case that surprised anyone, so let’s stop pretending this is about undue influence.”
A truly independent judiciary would result in conservative justices making decisions that were indeed surprising and not merely the desired result of their benefactors and fellow travelers. It’s preposterous to think that Clarence Thomas cannot be said to have been unduly influenced by millions of dollars worth of gifts he received from conservative billionaire Harlan Crow while Crow was connected to groups with business before the Court because his views were already known and aligned with the goals of his patrons. But what else do you expect from a Court that recently ruled that bribery of public officials is just fine, as long as you do it after you’ve received the desired vote or action or decision, not before?
Senator Mitch McConnell’s statement is just as absurd as Leo’s. McConnell’s response to this mild slate of reforms was to accuse the Biden administration of being “so willing to put the crown jewel of our system of government, the independent judiciary, to the torch.” McConnell doesn’t deign to explain how the proposed reforms would make the Supreme Court less independent. Similarly, Speaker of the House Mike Johnson declared the proposals “dead on arrival” and “dangerous” without bothering to describe why.
Indeed, all three proposals arguably make the Court more independent.
An amendment that makes it impossible for justices to vote to grant broad criminal immunity to the president who appointed them inherently gives the justices the gift of freedom, of not being bound to the person who gave them their job.
Term limits with staggered appointments simply ensure that all presidents would get equal chances to nominate justices. This in no way compromises the independence of the Court. Rather, it allows for a healthy mix of appointees and an appropriate amount of churn whereby people leave the bench rather than squatting atop it, collecting gratuities from benefactors, as Thomas has done for over three decades.
Finally, a binding code of ethics explicitly increases the independence of the justices, as it removes the ability for the moneyed to shovel cash and gifts to their preferred justices in the hopes of obtaining their desired result.
Republicans aren’t opposed to these proposals because they would compromise the independence of the Court. They’re opposed to them because they would compromise the ability of Republicans to treat the Court as just another extension of their legislative and cultural agenda.
Biden stops short of backing Court expansion
Notably, Biden is not calling for expanding the Supreme Court or the lower federal courts, an omission which may chagrin some court reform backers. That expansion is seen as critical in restoring balance to a Court that has tilted wildly to the right. But given the outrage with which these far milder proposals for reform have been met, expansion is likely out of the question unless Democrats obtain large majorities in both houses of Congress.
Biden may also be acting strategically here. While he has long opposed expansion, Vice President Kamala Harris expressed a willingness to consider it back in 2019 when she was running for president. Now that Harris is the candidate, she may feel free to make a call for expansion a part of her campaign.
American confidence in the Supreme Court is at an all-time low, with Americans correctly believing that the Court is currently a vehicle for ideologies, not law. Biden and Harris have an opportunity to change this. Despite the difficulties court reform presents, a sea change at the Supreme Court is the only way that American democracy survives intact.
That’s it for today
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Thanks for reading.
I still think the court needs expanded to a minimum of 13 seats, and question why it shouldn’t be 26, for random seatings even. 18 year terms with appointments every two years is a very reasonable thing to do, and gets rid of the permanent seatings, I can agree that is a very needed reform.
Also, the 60 votes filibuster rule in the Senate doesn’t need to be heeded to. A simple majority is enough, and with Manchin and Sinema out, it is entirely possible.
I agree that change in SCOTUS is the only way that the American Democracy survives. It is already a non democratic body as it is currently behaving, as well as being a body that is violating the constitution. I consider that treasonous and those who are doing it should be held to account.