Biden’s Supreme Proposal
Terry H. Schwadron
July 30, 2024
The good news about the Democratic ticket switch is that it leaves Joe Biden and a split Congress to deal with governing, which Biden is good at, and sheds the job of running for president, for which Biden is not so good — as even he now agrees.
So. as promised last week, we still have another six months of consideration for whatever Biden wants to offer, even with the inevitable partisan opposition it all will engender.
First up, as Biden made clear on Monday, is a proposal with changes for the U.S. Supreme Court’s makeup and behavior, apparently including term limits and an enforceable code of ethics. It is, as Politico notes, “a remarkable shift for a president who had long resisted calls to overhaul the high court.”
Of course, this kind of response from Biden is either long overdue, as most attempts to gauge public sentiment are concerned, or something that his Republican opponents are likely to see as a direct attack on the now firmly established right-leaning majority on the current court. In any event, it is a belatedly welcome set of ideas that should be fodder for any Donald Trump-Kamala Harris debate, formal or not. Harris supports the changes.
At best, we have seen continuous dissembling from the nine current justices both about behavior off and on the bench, with no apparent desire to adhere to ethical standards, and a string of legally questionable decisions. And the immunity decision seems certain to invite misdeeds by future presidents.
We ought to chuck the politics for once and listen to the plan because it makes sense.
Outlining the Problem
There are two issues of concern to prompt unhappiness with the court’s direction.
The first is the blatant disregard that at least two Republican-appointed justices have displayed towards disclosures that they repeatedly have accepted huge financial gifts from wealthy supporters whose interests then appear before the court. Rather than face the reports of ethical violations by Justices Clarence Thomas and Sam Alito, Chief Justice John G. Roberts Jr. has mostly glossed over the issues with an ethics code that has no enforcement mechanism and bowing to a tradition that leaves recusal and ethical behavior in the hands of those who are abusing it.
The plan would require justices 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 — clauses that aim right at Thomas and Alito. Their disclosed gifts far outweigh those to other justices, and Thomas’ wife, Ginny, was involved in election denial discussions.
The bigger issue — with some overlap with recusal concerns — are decisions ranging from the overturning of abortion rights to this year’s presidential immunity decision that run afoul of precedent, the claim to “original textualism” on which conservatives have said they rely, and popular common sense. In every state election on abortion issues since the 2022 decision overturning Roe v. Wade, voters have endorsed abortion rights, for example. The immunity decision is being interpreted by Donald Trump as a legal means to delay, dismiss or overturn criminal proceedings against him, whether or not they involve “official acts” by a sitting president, which some do not. So too with a series of decisions that limit actions by federal agencies without specific direction from Congress, or almost anything proposed to deal with immigration issues.
The record of current lineup of lifetime justices have been documented to veer from their own nomination testimonies and have turned the court majority into a kind of super-legislature acting on the substance of issues rather than “calling balls and strikes,” as Roberts has defined its role.
Biden now proposes legislation for an enforceable code of ethics as applies to every other federal employee and an effort towards a constitutional amendment limiting immunity for presidents and certain other officeholders.
The idea of term limits, supported almost universally by conservatives in other governmental roles, suddenly seems anathema to right-leaning lawmakers, who want to protect Thomas, Alito, Neal Gorsuch, Brett Kavanaugh and Amy Coney Barrett.
Indeed, the Biden proposals for the court make for common sense. Whatever protections are imbued to lifetime appointments will hold for 18-year appointments, and yet the process of naming and approving our justices has gotten out of whack. There seems little understandable defense for lack of an enforceable ethics code. The immunity amendment would correct what looked to be a partisan effort that runs against the spirit of American fairness.
The Politics
Despite Biden’s proposals, the currently divided Congress is unlikely to take up these issue before the end of the year. Even if Democrats control both chambers after the election, they’re all but certain to fall short of the 60 Senate seats needed to break a filibuster on court changes.
A constitutional amendment would face yet more difficult since it requires two-thirds support from both chambers of Congress or from a convention called by two-thirds of the states, as well as the approval of three-fourths of state legislatures.
Sitting Justice Elena Kagan came out publicly last week with a nudge to her chief justice, saying that an ethics code as the court now has requires enforcement. She suggested a panel of federal judges as an out for Roberts, who, until now, has insisted that justices should be able to control their own behavior,
Biden had a chance to promote these changes a couple of years ago, when he convened a panel of legal experts to look at the issues — but who were barred from making recommendations. Nevertheless, recent decisions, including the immunity case for presidential behavior, have been “terrible.” When asked, Biden said about the immunity decision. “I would argue, if you check, surveyed constitutional scholarship, they seem out of touch with what the founders intended.”
Term limits of 18 years would allow every president to nominate Supreme Court justices on a rolling basis, perhaps taking some of the evident partisanship and ill will out of the current nomination process for lifetime jobs. It would ease decisions about justices maneuvering when to leave the court to curry more politically agreeable replacements. And it would strengthen the ethical boundaries for justices.
In any event, Biden has decided to be president, not presidential candidate. Now let’s see him govern as a lame duck. Wars, homelessness, immigration, hunger, voter rights and community policing, even Secret Service protection all loom as unresolved issues.
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