WaPo (“Biden set to announce support for major Supreme Court changes“):
President Biden is finalizing plans to endorse major changes to the Supreme Court in the coming weeks, including proposals for legislation to establish term limits for the justices and an enforceable ethics code, according to two people briefed on the plans.
He is also weighing whether to call for a constitutional amendment to eliminate broad immunity for presidents and other constitutional officeholders, the people said, speaking on the condition of anonymity to discuss private deliberations.
The announcement would mark a major shift for Biden, a former chair of the Senate Judiciary Committee, who has long resisted calls to make substantive changes to the high court. The potential changes come in response to growing outrage among his supporters about recent ethics scandals surrounding Justice Clarence Thomas and decisions by the new court majority that have changed legal precedent on issues including abortion and federal regulatory powers.
Biden previewed the shift in a Zoom call Saturday with the Congressional Progressive Caucus.
“I’m going to need your help on the Supreme Court, because I’m about to come out — I don’t want to prematurely announce it — but I’m about to come out with a major initiative on limiting the court. … I’ve been working with constitutional scholars for the last three months, and I need some help,” Biden said, according to a transcript of the call obtained by The Washington Post.
Term limits and an ethics code would be subject to congressional approval, which would face long odds in the Republican-controlled House and a slim Democratic majority in the Senate. Under current rules, passage in the Senate would require 60 votes. A constitutional amendment requires even more hurdles, including two-thirds support of both chambers, or by a convention of two-thirds of the states, and then approval by three-fourths of state legislatures.
AP (“Biden seriously considering proposals on Supreme Court term limits, ethics code, AP sources say“) adds:
It would mark a major shift for Biden, the former head of the Senate Judiciary Committee, who has long resisted calls to reform the high court, though since taking office he has been increasingly vocal about his belief that the court is abandoning mainstream constitutional interpretation. The details were first reported by The Washington Post.
Any changes would require congressional approval, which would be unlikely in a divided Congress. But with Republican nominee Donald Trump bragging about putting the three justices on the high court who are now part of the conservative majority, Biden’s call for major changes could help animate his voters.
According to the WaPo report, Biden got some of these ideas in a conversation with the eminent Harvard Law professor Lawrence Tribe, who put them in a Guardian op-ed (“How the US supreme court shredded the constitution and what can be done to repair it“) written in response to the Trump immunity decision.
My main takeaways from this shameful decision are three: first, there is a compelling need for supreme court reform, including a plan to impose an enforceable ethics code and term limits and possibly create several added seats to offset the way Trump as president stacked the court to favor his Maga agenda; second, we should start planning for a constitutional amendment of the sort I have advocated in the New York Times to create a federal prosecutorial arm structurally independent of the presidency; and third, we need a constitutional amendment adding to article I, section 9’s ban on titles of nobility and foreign emoluments a provision expressly stating that nothing in the constitution may be construed to confer any immunity from criminal prosecution by reason of a defendant’s having held any office under the United States – and a provision forbidding use of the pardon power to encourage the person pardoned to commit a crime that the president is unable to commit personally.
Amending the constitution to address problems the supreme court creates needn’t take long. When the court prevented Congress from lowering the voting age to 18 in state along with federal elections in Oregon v Mitchell, it took under seven months for us to adopt the 26th amendment to repair that blunder. And the court can overturn its own egregiously wrong decisions quickly, as it did in 1943 when it overturned a 1940 ruling letting states force children to salute the flag against their religious convictions in West Virginia state board of education v Barnette.
I haven’t given much thought to an amendment regarding immunity for officeholders, let alone one that would establish an independent prosecutorial arm. Offhand, the latter strikes me as dangerous and unworkable but all I have to go on is one line. (I’m in a hurry this morning, so don’t have time to look up his old NYT op-eds.)
I am highly skeptical, though, that Congress can impose term limits or an ethics code on the Supreme Court. Article III of the Constitution clearly states that Justices serve “during good behavior.” That has been interpreted for almost 250 years now to mean they have life tenure unless they’re impeached and convicted.
An ethics code is less black and white. Congress clearly has the power to impose rules for lower federal courts, which are creatures of Congress; indeed, Congress has the power to restructure the entire system and even close down parts of it. (Although, presumably, the judges on those courts would still have a right to a post.) While there are groups on the left, like the Brennan Center, arguing that an ethics code for SCOTUS is constitutionally enforceable, it’s decidedly a minority view. Congressional Research Service experts conclude:
If Congress wished to sanction a Justice who had allegedly violated the Justices’ Code of Conduct or another applicable ethical rule, the Constitution would also impose limits. Article III forbids Congress from reducing Supreme Court Justices’ salaries or removing them from office except via the extraordinary and blunt remedy of impeachment. Thus, Congress may have limited means to induce Justices to behave ethically.
They follow this with a point I was going to make myself:
Because the Supreme Court possesses the authority to determine the constitutionality of legislative actions, the Supreme Court itself would likely play a critical role in determining whether Congress could validly impose or enforce ethics rules on the Court. There is limited legal precedent on this issue because Congress and the Supreme Court have historically taken an approach focused on interbranch comity, declining to test the full extent of their powers in order to avoid conflict between the legislative and judicial branches. Thus, Congress has at times deferred to the Court to set court rules and procedures, and the Court has at times acquiesced to ethics legislation without formally addressing its constitutionality. It is therefore difficult to predict whether or how the Court might address the constitutionality of possible Supreme Court ethics legislation.
I would dispute only the last sentence of that: it’s not at all difficult to predict that the Court would strike this down by at least a 6-3 margin, if not unanimously.
