How Biden’s Court Reform Proposals Could Work—if the Court Would Let Them

But, as sensible as term limits sound, there is a somewhat obvious problem with this proposal: Article III of the Constitution, which states that “Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour.” This last phrase has been interpreted to mean “life” tenure. There’s no real constitutional mechanism for forcing Supreme Court justices out after 18 years. Even if Congress mandates, by statute, that Supreme Court justices have to leave after 18 years, the justices themselves will likely say “no” and, when the statute is inevitably challenged, rule that it’s unconstitutional.

For other federal judges, the ones appointed to what the Constitution calls the “inferior courts,” we do have a workaround for this problem. It’s called “senior status.” Judges on, say, the circuit courts of appeal, can enter into a semi-retirement once they hit a certain age and accrue enough time on the bench. They are still eligible to hear cases and collect their full salaries, so they still “hold their offices,” but they vacate their seats so a president can appoint their replacement. Senior status is provided by statute, and similarly, Biden’s term limits proposal could be done through an act of Congress and signed by the president.

However, senior status is voluntary. The statute does not force judges to take senior status, and federal judges tend to take senior status only when they know they will be replaced by a member of their own party. As a constitutional matter, term-limits probably work only if a justice voluntarily wants to leave—and, once again, we know who will decide that. For what it’s worth, I think term limits could be constitutional: specifically there’s an argument that Congress has the authority to remove justices from appellate jurisdiction, with life tenure only applying to very small number of cases where a state is suing another state (which gives rise to the “original” jurisdiction the constitution gives to the Supreme Court).

But the problem is not convincing me, or a bunch of legal academics. There are currently three justices on the Supreme Court who have served 18 years or more: John Roberts, Clarence Thomas, and Samuel Alito. Who is going to tell them it’s time to leave? How quickly do you think they will rule that term-limits are unconstitutional if they are pressed?

The only practical way of imposing term limits is through a constitutional amendment, but Biden didn’t propose that here. He obviously thinks, or has been told, that the Roberts court will somehow agree to abide by term limits should Congress pass them.

Biden is wrong, but he won’t be president when John Roberts gets around to proving him wrong. I guess we’ll just have to pass term limits and wait for the Supreme Court to reject them before the people who want term limits get serious about making them actually happen.
 

Ethics Reform

The Trump court has been the most ethically compromised court in American history—based, at least, on the receipts we have available. Justice Thomas has taken more undisclosed free vacations than an Instagram model; his wife supported the January 6 insurrection. Justice Alito also likes to take free jet vacations without revealing who’s paid for his ticket; his wife cannot stay off the flagpole. Justice Gorsuch sold some of his property to the head of one of the biggest law firms in the country the moment he was elevated to the court. Kavanaugh is an alleged predator whose debts magically disappeared when he was nominated to the bench.

In response to this, Biden has proposed a “code of conduct” for the Supreme Court. “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,” he wrote in The Washington Post, adding that code should be “binding,” which, I believe, means that somebody other than the Supreme Court itself should be in charge of enforcing it. He did not, however, say who or what should do the enforcing.

Last week, during a speaking engagement, Justice Elena Kagan offered her unsolicited opinion that a panel of experienced judges would be the ideal mechanism for reviewing allegations of ethics violations by justices. Kagan suggested that Chief Justice Roberts appoint the panel himself, which kind of ruins the idea of the judges being accountable to an independent authority.

There are a couple of different ways this could work but, essentially, it would involve bringing ethics complaints to some panel of judges and making the Supreme Court justices adhere to their rulings. If the panel says a justice needs to recuse from a case, they would have to recuse, and so on.

There’s no obvious constitutional problem with this proposal. Unfortunately, we already have direct and recent evidence that conservative judges will reject even this minimal kind of accountability. That evidence comes from the Kavanaugh saga. After Kavanaugh was elevated to the Supreme Court, he still had 83 ethics complaints pending against him. A panel of lower court judges dismissed them all, not based on any ruling about the merits of those complaints but because the court deemed it did not have the power to hold Supreme Court justices accountable. The chief judge of the 10th Circuit, Timothy Tymkovich, a Bush appointee, said that the complaints were “serious,” but concluded he had no authority to act.

Perhaps the analysis of Tymkovich and others would change if Congress explicitly gave them that authority by passing an enforceable ethics code. But that would almost certainly just punt the ball back to (wait for it) the ethically compromised Supreme Court; somebody who would be adversely affected if one of their bought justices was removed from the case would probably sue, arguing that the ethics penalties were an unconstitutional violation of separation of powers. It would be up to the justices to decide whether the authority granted by Congress to hold them accountable was constitutional.

I can’t say for sure how the conservatives supermajority would rule, but given that these people recently legalized bribery of public officials as long as you call it a “gratuity,” I don’t have a ton of hope that they would abide by any ethics legislation passed by Congress.

Of course, we should pass an ethics law anyway, and appoint a real independent body to review the complaints, not a cabal appointed by Roberts. But as long as the compromised justices are a majority of the court, it’s unlikely they will respect any laws that impact their travel plans.
 

Immunity Amendment

As a final reform, Biden has proposed that Congress pass and the states ratify a 28th Amendment to the Constitution. He has named it the “No One Is Above the Law” Amendment, and said: “It would make clear that there is no immunity for crimes a former president committed while in office.”

The amendment would overrule the Supreme Court’s disastrous decision to grant Trump immunity in the same way that the 13th and 14th Amendments overruled the Supreme Court’s disastrous Dred Scott decision, which was one of the causes of the Civil War. Sometimes, the Supreme Court gets something so fundamental so entirely wrong that we do in fact need to update the Constitution so people can never be that wrong again. This is one of those times, and this amendment is therefore entirely appropriate.

Biden’s proposed amendment would take away immunity for presidents after they leave office. The rule of law reformist in me must note that an even stronger amendment would take away that immunity while they’re in office as well. The idea that presidents can commit crimes and get away with it as long as they remain president is also terrible and should be excised from our Constitution. But… I wouldn’t expect a sitting president to propose that.

I’ll also mention that if amending the constitution is back on the table: the Equal Rights Amendment is the easiest way to restore the abortion rights the Supreme Court took away. And a voting rights amendment would undo much of the work the conservative supermajority has done to suppress the right to vote and gerrymander away the political power of people of color.

In any event, a constitutional amendment requires passage by two-thirds of both the House of Representatives and the Senate. Then it must be ratified by three-fourths of the state legislatures. So to make this a reality, Republicans are going to need to get on board.

The question is: why would Republicans be against holding presidents liable for crimes—unless they like presidents who commit crimes? If the media existed to hold the powerful accountable, that would be a question they would ask of every elected member of the Republican party until this amendment was ratified.

In a follow-up aarticle to Biden’s op-ed, The Washington Post described these proposals as “aspirational,” noting that Republicans were likely to oppose all of these measures. The Post is not wrong, but they didn’t do a good job of explaining why, especially given the popularity of these proposals with the general public.

Republicans are opposed to Supreme Court reform because the Supreme Court allows them to do by fiat what people will never actually vote for them to do. Republicans have worked hard to control and purchase the court, and they’re not likely to ruin what they’ve accomplished by agreeing to term limits and ethics codes. They’d rather just keep winning.

Here’s the real rub, though: These proposals from Biden will not stop Republicans from winning. And they won’t undo the damage that has already been done. Of all the proposals, only the “No One Is Above the Law” amendment would change a recent Supreme Court ruling, and that ruling, terrible as it was, is highly specific.

Meanwhile, even if term limits are somehow made constitutional, they do not guarantee a more liberal bench, nor do they undo the harm caused by the current Supreme Court. Heck, we don’t even know when term limits would start. It’s likely that any term limits bill would be applied only prospectively, to future judicial appointments, and not retroactively to justices currently on the court.

As for ethics reform, it would not change a single past decision, or decision making process. It would just limit how brazenly corrupt the court can be while making those decisions.

To put this all another way, these proposals would not diminish the power Republicans have now. They would just make it harder for Republicans to hold that power forever with permanent one-party control of the Supreme Court.

Biden did not call for the one truly transformative solution—adding justices to the Supreme Court—and I believe I know why. It’s an election year: term limits and ethics reform are popular, expanding the Supreme Court is not. Term limits and ethics reform sound reasonable, court expansion sounds radical. Term limits and ethics reform are political winners, court expansion is not.

And so we play our game. I support these moderate, incremental, common sense proposals—even though they won’t fully fix the problem of an extremist court, or really reform how the Supreme Court operates going forward—because taking literally any step towards court reform is big for the Democratic Party, and politicians are always more comfortable taking popular positions.

I believe these proposals are a necessary part of our long journey towards court reform. The country, I think, needs to see the Democrats try this, pass something, and then watch in horror as the conservative extremists overturn these laws before the ink dries on the legislation.

Biden’s proposals are worthy ideas. When the Supreme Court rejects them, maybe people will be ready for the ideas that will actually bring the court to heel.