Reform needed.
Photo: Supreme Court of the United States/Getty Images
Joe Biden’s not running anymore, but he’s still got six months left in the most powerful office on earth. The outgoing president — with spirited support from vice-president and soon-to-be presidential nominee Kamala Harris — announced this week that he will pursue an ambitious endgame initiative: Supreme Court reform.
Biden’s proposal (mostly) advances important goals that have slipped public notice for too long. He’s doing a service to shine a light on the Supreme Court, which has increasingly seized power for itself and resisted efforts to impose accountability. But the reform package at times wanders into fantasyland and faces virtually insurmountable practical obstacles. It’s a well-intentioned showpiece that is dead on arrival — whether Biden knows it or not (I suspect he does). Still, it could eventually lead to some sorely needed incremental progress.
Before we get to the current proposal, let’s remember that Biden has a history of saying things about the Court that he has no ability (or perhaps intention) to accomplish. During the 2020 presidential campaign, he was beset with questions about whether he would seek to expand the Court’s size. Biden found himself caught between a political instinct to appease the far left and reality — including his own unequivocal 2019 statement “No, I’m not prepared to go on and try to pack the Court because we’ll rue the day.”
When he took office a few months later, Biden did what any skilled politician does to pay lip service to an idea while killing it: He farmed it out to a commission. Predictably, the grandiosely named Presidential Commission on the Supreme Court of the United States churned out a few hundred pages of thoughtful but noncommittal brainstorming about potential Court reforms. Nobody cared, nobody did anything, and the report now resides comfortably in its online retirement home.
Biden has wisely omitted from his new reform package any far-fetched plan to expand and pack the Court. But the proposal does have its own fantastical, self-defeating centerpiece: a constitutional amendment reversing the Supreme Court’s recent presidential-immunity ruling. This part of the plan channels the frustration from exasperated liberals who confidently (but delusionally) foresaw a major Trump trial occupying the entire 2024 campaign stretch, culminating in a dramatic Election Eve verdict. In the process, Biden overstates the Court’s ruling; he claims that now “there are virtually no limits on what a president can do.” Yet the Manhattan district attorney’s office recently argued that the Court’s opinion does not have such a sweeping effect and shouldn’t impact the hush-money case against Trump at all. Trump’s other prosecutors will surely do the same in the coming months.
Third Degree With Elie Honig
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Reasonable minds can differ on the wisdom of stripping the presidency of its shiny new prosecutorial shield, but it’s a practical dead letter. A constitutional amendment requires two-thirds of the House (good luck with that), plus two-thirds of the Senate (forget about it), and then, finally, three-fourths of the states (you get the picture). Alternatively, we can convene a brand-new Constitutional Convention. I wouldn’t recommend buying advance tickets.
As we move to the next pillar of Biden’s proposal, we reenter the realm of reality. The president reportedly wants to impose 18-year term limits on Supreme Court justices. As a policy matter, I’m with Biden on this one, as are over 60 percent of the American public (including a majority of Republicans). I’m perfectly fine with giving justices an entire generation, but not necessarily forever, to wield power and make their mark.
But again, we face daunting procedural hurdles. At first glance, the term-limit proposal seems to call for another constitutional amendment. Article III guarantees life tenure to all federal judges, who can serve until their resignation, impeachment, or death. The work-around here is that the justices won’t be kicked off the bench altogether after 18 years — they’ll just be demoted to lower federal appellate and trial courts. Hey, the Constitution says you get to be a federal judge for life, but it doesn’t specify on what court. (I’d assume any such policy would apply only prospectively, though it is amusing to think about the poor guy who has to inform Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito — all of whom have been on the Court for more than 18 years — that they’ll be heading down to the district court to do bail hearings and take pleas on felon-in-possession firearms cases.)
So given the impossibility of an amendment, Congress would likely need to enact term limits through legislation. First, it would be tough — though not impossible given the aforementioned polling data — to get a proposal through the House, Senate, and president. Second, legislation enacting term limits would likely be challenged legally and could land for final review before [checks notes] … the U.S. Supreme Court itself. Bit of a conundrum there. The justices would have a smidge of institutional self-interest on this one, and it would surprise nobody if they found term limits in conflict with the life-tenure provision of Article III. Still, it’s a fight worth having. The only alternative is the status quo.
Finally, Biden endorses a Supreme Court code of ethics carrying some meaningful enforcement mechanism. Now, you may be thinking, Didn’t the justices recently impose sparkly new ethics rules on themselves? They did — and those rules have proved to be precisely as toothless as they were when immediately assessed by essentially every sentient observer. Put it this way: If you word-search the Court’s new ethics rules, you’ll get 53 hits on should and only six on must (none of which actually imposes mandatory duties on the justices). And if you word-search penalty, enforce, consequence, discipline, suspend, and fine, you’ll come up dead empty.
So we return to that pesky but vital practical question: How do we enact a real code of ethics? Again, we’re likely in the realm of legislation here, but again, we face questions about whether passage of a new ethics code through Congress and the president is politically feasible. And even if such legislation does pass, it could face a constitutional challenge (separation of powers or some such) that would result in the Supreme Court itself deciding whether to accept ratcheted-up ethics rules imposed on it by Congress. I have a guess as to how that might come out.
I don’t mean to sound defeatist here. The Supreme Court is badly in need of a kick in the ass, and Congress seems largely uninterested in messing with the occupants of the marble palace across the street. It’s a healthy exercise to have these conversations, even if they’re unlikely to result in immediate, sweeping change. So give Biden credit for raising the issues as he heads toward his exit. As the Boss (the one who reigns forever) put it 40 years ago, You can’t start a fire without a spark.
This article also appeared in the free CAFE Brief newsletter. You can find more analysis of law and politics from Elie Honig, Preet Bharara, Joyce Vance, and other CAFE contributors at CAFE.com
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