Judging Biden’s Supreme Court reform plan

The Supreme Court needs reform if it is ever to regain public confidence. At the moment, the court’s approval rating, according to Fox News, stands at 38 percent, an all-time low. It is no longer seen as a disinterested umpire calling balls and strikes, as Chief Justice John Roberts would have it, or the even the trusted keeper of our sacred right to justice.

In his speech from the Oval Office on July 24 abandoning his reelection campaign, President Biden spoke of the things he would continue to do in his six months remaining in office. “I’m going to call for Supreme Court reform because this is critical to our democracy,” he said.

Biden wasn’t kidding. He unveiled the details of his proposed reform in an op-ed in the Washington Post. There, he pushed for term limits on justices, an “enforceable” ethics code and a constitutional amendment he called the “No One Is Above the Law Amendment” to override the 6-3 immunity decision in Trump v. U.S. None of these proposals will likely pass in the present political climate.

The immunity decision, according to Biden, placed presidents, and especially former President Donald Trump, above the law. Our country was founded on the principle that no one, least of all the president, is above the law. In England, argued Thomas Paine, “the King is law,” but “in free countries the law ought to be king.”

Presumptive Democratic nominee Kamala Harris, a lawyer who served on the Senate Judiciary Committee, was quick to endorse Biden’s bold plan. She said the proposed changes would “restore confidence in the court, strengthen our democracy, and ensure no one is above the law.”

Biden’s remarks were triggered by the court’s immunity decision, which the president described as meaning “that there are virtually no limits on what a president can do,” he said. “And it’s a dangerous precedent because the power of the office will no longer be constrained by the law.”

The immunity case is not the only problem crying out for reform. Don’t forget the scandals involving Justices Clarence Thomas and Samuel Alito accepting extravagant unreported gifts from litigants before the court, and the serious ethical questions as to why they have not recused themselves in case after case where their “impartiality might reasonably be questioned.”

The court’s partisan shift to a reactionary supermajority has raised concerns as well. Sen. Edward J. Markey (D-Mass.) and Rep. Hank Johnson (D-Ga.) held a news conference on July 25 to call for an expansion of the Supreme Court by four seats. The number of Supreme Court justices is not found in the Constitution and has changed seven times in history.

But be careful what you wish for. If the Markey bill were to pass, and Trump is reelected, he could appoint four more conservative justices to give him bullet-proof protection from indictment and prosecution.

This is probably academic anyway. The proposal, at least in this Congress, is on an express track to the dustbin of history.

Supreme Court reform is nothing new. President Franklin D. Roosevelt in 1937 called for emergency measures to save the economy from the ravages of the Depression. He saw one-third of the nation as “ill-nourished, ill-clad, ill-housed.” The Supreme Court, most often by 5-4 votes, was striking down these measures under the due process clause of the Constitution.

So, in a Fireside Chat, Roosevelt said: “We have, therefore, reached the point as a nation where we must take action to save the Constitution from the court and the court from itself....In our Courts we want a government of laws and not of men.”

Roosevelt proposed a bill to add one new justice for every sitting justice over the age of 70-and-a-half, up to a maximum of six additional justices. This would have allowed him to appoint justices favorable to his policies, thus “packing” the court. The bill was dead on arrival in the Senate, and the issue became moot as a number of conservative justices retired. Roosevelt later got to appoint nine justices more to his liking.

In 2020, Biden promised to set up a bipartisan commission to study the weighty question. The commission produced a 294-page report with a number of proposals.

Term limits were in the foreground of the report’s recommendations. Biden points out aptly that the “United States is the only major constitutional democracy that gives lifetime seats to its high court.” Of course, the Constitution provides for lifetime tenure for all federal judges, and this would appear to be a barrier to congressionally mandated term limits. However, it is doable.

Congress could provide that “after 18 years of service, justices become senior justices and stop participating in the normal work of the court.” Instead, they would perform a different set of judicial duties. There is the precedent that retired justices have sat in panels on lower federal courts, Sandra Day O’Connor and David Souter being paradigm examples.

But judicial independence is another important factor. The report says that: “Political scientists have concluded that the democratic systems most resistant to [backsliding on judicial independence] … are those [like ours] in which an electoral majority is not sufficient to change the fundamental structure of institutions such as the courts.”

Justice Elena Kagan has suggested an ethics code to be enforced by a panel of lower court justices to be appointed by the Chief Justice. The approach is designed to save the court’s reputation.

If the enforcement mechanism is enacted by Congress, there is of course the issue of separation of powers. This probably would be constitutional, but guess who would rule on the question? As Chief Justice Charles Evans Hughes said, “We are under a Constitution, but the Constitution is what the judges say it is.”

James D. Zirin, author and legal analyst, is a former federal prosecutor in New York’s Southern District. He is also the host of the public television talk show and podcast Conversations with Jim Zirin.