Jul.29

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Biden Calls for Supreme Court Reform

Two insiders told Politico that this week (likely today), Joe Biden will unveil a proposal to reform the Supreme Court. We wrote that up. When we checked The Washington Post this morning, what did we find? An op-ed from Joe Biden calling for Supreme Court reform. Time for a quick update here. This is a shift for him, since he has opposed Court reform up until now.

Biden's proposal has three parts.

• No One is above the law: This part calls for a constitutional amendment to overturn the Supreme Court's decision that the president is like a king. It would make clear that no one is above the law, not even the president. It could also mention that it additionally applies to the vice president, the cabinet, members of Congress, the entire judiciary, and everyone else in the country, just to prevent a future Supreme Court from trying to weasel around it. It could conceivably say that sitting presidents as well as past presidents can be indicted. The wording would be up to Congress. A two-thirds majority is needed, followed by ratification by three-quarters of the states.
  
  
• Term limits: This part calls for the term of a justice to be changed from lifetime to 18 years. Every two years, the then-sitting president could appoint a new justice. That would prevent a single president from getting lucky and being able to shape the Court due to (strategic) retirements or deaths. The amendment would have to deal with the transition period until we hit equilibrium. Would sitting justices who have been on the court for 18+ years be autoretired on the day the 38th state ratifies the amendment, or what?
  
  
• Ethics: This part calls for a binding code of ethics. It would require full disclosure of gifts justices receive and would have some as-yet-to-be determined enforcement mechanism. Conceivably, a panel of appellate judges could be assembled to investigate allegations of violations of the ethics code and could recommend or strongly recommend that the House impeach the errant justice and the Senate convict him or her. Could a defiant justice refuse to budge? Maybe, but then the ball would be in Congress' court, not the Supreme Court.
  

The proposals aren't worked out in detail. That would be up to Congress. The first one and second one definitely require one or more constitutional amendments. The third could be done by passing a federal law.

What if it proves impossible to get an amendment through Congress? After all, it requires a two-thirds majority of each chamber, so eliminating the filibuster wouldn't be enough. Could anything be done then? Maybe this. As to the first part, Congress could pass a law limiting the presidential immunity to only those presidential powers specifically named in the Constitution. So soliciting and accepting bribes for pardons would be legal, but many other "official acts" not named in the Constitution would not be. This law would be challenged, but the Court might be cowed by public reaction to the immunity decision and back down the second time, especially if the president were a Democrat who threatened to use his immunity in ways the conservative justices did not like at all ("I believe that in the name of national security I have the authority to order the CIA to assassinate Supreme Court justices who violate the Constitution and I certainly have the power to pardon the actual gunman or gunwoman."). Franklin D. Roosevelt didn't pack the Court, but the threat of his doing so scared the justices into refraining from killing the New Deal.

As to the second part, Congress could pass a law stating that after 18 years on the Supreme Court, a justice would be rotated off it and would serve for life in the appellate court of his or her choice. Or maybe a position of "senior justice" could be created, analogous to the senior judges on the appellate courts. The Constitution says that justices serve for life in good behavior, but it doesn't actually say they can serve on the Supreme Court for life. One interpretation of that clause is that they continue to draw their salary for life but that they can be put on senior status as required by (a new) law or put on a different court.

If a case about term limits came to the Supreme Court and Court voted "nope," we'd be in a pickle. But Congress could prevent that. Art III, Sec. 2, clause 3 of the Constitution reads:

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make. [Our emphasis]

To pull this off, Congress could first pass a law declaring the Supreme Court has no jurisdiction on cases relating to the composition of the Supreme Court itself or tenure of its justices, and Congress has the final word with no appeal possible. This follows the ancient principle of "No man shall be the judge in his own case." If the justices balked, the AG could indict them for violating a law duly passed by Congress.

Needless to say, none of this will even start unless the Democrats win the trifecta and do something about the filibuster. They need not abolish it. It would be sufficient to require filibustering senators to stand in the well of the Senate and talk until they drop, with no chairs, food, drink, or breaks for any reason. The technical term for this is "diaper time." If only two senators were present (the presiding officer and the senator speaking), the presiding officer could order the heating/air conditioning turned off to save the taxpayers money. That would discourage filibusters in the summer. And the winter.

Although nothing will happen on this front until a new president and new Congress are seated, the effect could be immediate. By the time you read this, we expect that Kamala Harris will have already said she is for it and Donald Trump will have said he is against it. This instantly makes Supreme Court reform a campaign issue. We think it will help the Democrats because the Supreme Court is very unpopular and even Republicans aren't comfortable with corrupt justices, even if they like how they vote. It was a smart move for Biden to inject this into the campaign. (V)