What a difference a fortnight makes. Two weeks ago, Donald Trump was cruising in the polls and President Biden looked to be in jeopardy of losing the nomination. Perhaps as a way to bolster his support among progressives, Biden hinted that he finally was going to propose a plan to reform the Supreme Court. This change was long-simmering, as Biden's SCOTUS commission concluded nearly three years ago. Then, in a flash, things changed. On July 13, Trump survived an assassination attempt by the skin of his ear. Two days, Trump tapped JD Vance as his VP, and the successor of the MAGA movement. On July 19, we got Hulkamania, and Trump gave his RNC speech. Two days later, President Biden dropped out, and VP Harris ascended to the nomination by proclamation. Life comes at you fast.
Here we are, on July 29. And, in an anticlimactic fashion, the lamest duck in modern Presidential history has meekly put forward three suggestions for the Supreme Court that lack any specificity, and will go nowhere, fast.
Biden announced the policy not in the Rose Garden, or on the steps of the Supreme Court, but in a Washington Post Op-Ed. Given the President's communication problems of late, this was probably for the best. The essay is fairly short. It leads with January 6, immunity, and democracy. I know this is a common talking point for progressives, but I'm not sure this point really resonates anymore. That Trump is at least in striking distance of the presidency suggests that all of the talk about democracy the past few years have had no meaningful impact on the populace. I think Barton Swaim's editorial in the WSJ accurately captures how to think about January 6.
It's true that the Jan. 6 riot was a disgrace and an embarrassment to the United States. But Democrats have vastly overinterpreted its political significance. Their belief that it would work as a peremptory argument against a second Trump term was a fantasy.
By the fifth paragraph, Biden finally turns to the Supreme Court, where he sees a "crisis of ethics."
On top of dangerous and extreme decisions that overturn settled legal precedents — including Roe v. Wade — the court is mired in a crisis of ethics. Scandals involving several justices have caused the public to question the court's fairness and independence, which are essential to faithfully carrying out its mission of equal justice under the law. For example, undisclosed gifts to justices from individuals with interests in cases before the court, as well as conflicts of interest connected with Jan. 6 insurrectionists, raise legitimate questions about the court's impartiality.
If there are scandals and crises, where are the articles of impeachment? Has Biden signed onto AOC's proposal? No, of course not. There is no scandal. There is no crisis. Justices took actions that were consistent with the rules at the time. Perhaps Biden thinks those were poor exercises of judgment, but no rules were broken. Biden also embellishes quite a bit. Are Martha Ann Alito's flags "connected with Jan. 6 insurrectionists"? Has Justice Thomas decided any case in which Harlan Crowe was a party? No and no. But really, this is just throat-clearing from Biden. No real substance.
Biden then turns to this three proposals.
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.
As all know, a constitutional amendment must receive two-thirds vote from each House, and three-fourths vote of the states. This amendment is a non-starter. It would at least have been useful for Biden to propose some language about what such an amendment would even look like. But he would never do such a thing---or least his OLC would never sign off on it. As unpopular as Chief Justice Roberts's decision is, actually crafting a clear constitutional text for when immunity applies would be extremely difficult. Justice Barrett's concurrence does not fare much better. And the dissenters didn't really try to establish a generally-applicable rule--it was enough that Trump's conduct here lacked immunity. On this point, I would recommend Phillip Bobbitt's sober Just Security essay today. (If I could give a compliment, Just Security, which started off as a more progressive outlet for separation of powers issues, has been starkly more balanced of late than Lawfare, which began as a neutral outlet, but has since drifted away.)
At least with the first proposal, Biden clearly suggests a constitutional amendment is needed. But with the second and third proposals, he leaves the issue open.
The second suggestion concerns term limits:
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.
We know a constitutional amendment was needed to impose term limits on the President? Would an amendment be needed for the Justices? Biden does not tell us. He only speaks of a "system." Biden also elides the critical question of whether this proposal would be retroactive, or only prospective. For example, would the current nine Justices be required to retire after 18 years? Or would only new Justices appointed under this "system" be subject to the limit? Or does Biden favor the "panel" approach, in which Justices who have already served 18 years would be forced to take "senior" status and not hear any actual Supreme Court cases? I think that rule is 100% likely to be declared unconstitutional. It should be unanimous. And Biden certainly knows this. Or at least he should know it.
The third proposal cribs Justice Kagan's latest missive, calling on the ethics code to be enforceable.
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.
Biden does not explain how the code would be enforced? Would he assign lower federal court judges to oversee the Supreme Court? I wrote a long post about this issue yesterday, and I won't repeat those arguments here. But I will repeat my prediction of where this proposal may wind up:
I regret that Justice Kagan started down this road. Given that President Biden will soon announce his own Court reform, this issue is on the wall. Once the filibuster is abolished–as Senator Elizabeth Warren has promised–I suspect the Court will be placed under this regime. My other predictions from four years ago may yet come to fruition.
One final point. A number of President Biden's judicial nominees may need a tie-breaking vote from Vice President Harris. Given that she will be busy on the campaign trial, scheduling those tie-breaking votes may prove difficult. Biden's final judge count is still TBD.
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