The Supreme Court is a major issue in this election, thanks to the court’s conservative majority and its dangerous decisions recently. And now President Joe Biden and Vice President Kamala Harris want to reform it—and they’ve got backup from a key player: sitting Justice Elena Kagan.
On Monday, Biden called for Supreme Court reform in an op-ed in The Washington Post, supporting term limits for justices, an enforceable ethics code, and a constitutional amendment to overturn the court’s recent immunity ruling, which stops presidents from being criminally charged for official acts done during their presidency.
“This nation was founded on a simple yet profound principle: No one is above the law,” he wrote. “Not the president of the United States. Not a justice on the Supreme Court of the United States. No one.”
Harris quickly joined in, releasing a statement saying that “there is a clear crisis of confidence facing the Supreme Court as its fairness has been called into question after numerous ethics scandals and decision after decision overturning long-standing precedent.”
In his op-ed, Biden noted the “[s]candals involving several justices” and “conflicts of interest connected with Jan. 6 insurrectionists,” without naming names: Justices Samuel Alito and Clarence Thomas. Those scandals, Biden continues, “raise legitimate questions about the court’s impartiality.”
Biden and Harris speak with authority. Biden served as chair of the Senate Judiciary Committee for eight years, starting in 1987. Later, Harris served on the committee as a senator, putting her stamp on the committee in her questioning of both then-nominee Brett Kavanaugh as well as Donald Trump’s Attorney General Bill Barr.
If they need even more authority—not to mention support for the idea of reforms—they’ve got it from inside the court. This past Thursday, Kagan spoke to a judicial conference, endorsing an enforceable code of conduct for the high court—much like the one Biden is suggesting.
Kagan also had some rare, if lightly veiled, criticism for her conservative colleagues. She acknowledged the hollowness of the code that Chief Justice John Roberts implemented this session—it has no teeth to back it up.
“I think that the thing that can be criticized is, you know, rules usually have enforcement mechanisms attached to them. And this one, this set of rules does not,” Kagan told the federal judges and lawyers.
“Courts shouldn’t use individual cases as vehicles to advance some broader agenda or some broader project to change our governance structure or our society,” she said. “Hopefully, it doesn’t happen much, but there have been cases in the last few years in which it has happened to my lights, at least.”
Right on cue, the one person most responsible for forcing that broader agenda in the court—Trump court-fixer and benefactor Leonard Leo—issued his own statement blasting the idea that there should be enforceable ethics on the justices. You can bet he is speaking directly for his friends Clarence Thomas and Samuel Alito. Having their backer do their talking is completely normal.
Predictably, House Speaker Mike Johnson jumped on the corruption bandwagon, saying the reforms are “dead on arrival” in the House.
“President Biden’s proposal to radically overhaul the U.S. Supreme Court would tilt the balance of power and erode not only the rule of law, but the American people’s faith in our system of justice.”
These comments make the case even easier for Harris and the Democrats to prosecute: Republicans are for making Trump king, with a corrupt Supreme Court to back him up. So thanks, Leo and Johnson, for helping to make the case.
However, he is indeed right about the “dead on arrival” bit. The truth is, without Democrats holding a House-Senate-White House trifecta after this year’s elections, these critical reforms won’t happen.
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