Biden calls for term limits, enforceable ethics rules for Supreme Court justices
President Joe Biden, in an op-ed Monday, said “no one” including “a justice on the Supreme Court of the United States” is above the law, as he called for term limits and an enforceable ethics code for Supreme Court justices in what would be sweeping changes to the high court and the way it operates.
“I have great respect for our institutions and separation of powers,” Biden wrote in the op-ed. “What is happening now is not normal, and it undermines the public’s confidence in the court’s decisions, including those impacting personal freedoms. We now stand in a breach.”
Biden is expected to call for the changes to the court during remarks later in the day at the LBJ Presidential Library in Austin, Texas. He is expected to offer his support to a system in which the president would appoint a justice every two years to spend 18 years in active service of the Supreme Court.
Additionally, he is expected to call on Congress to pass binding, enforceable conduct and ethics rules that require justices on the high court 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.
Biden is also expected to call for a constitutional amendment that would limit the broad immunity presidents now enjoy following a recent Supreme Court decision.
Justices to the high court enjoy a lifetime appointment and can decide on their own whether to adhere to the court’s newly adopted ethics rules. Scrutiny of the court has heightened amid scandals involving Justice Clarence Thomas, who took free trips and received gifts from a conservative mega donor, and Justice Samuel Alito, whose wife flew two flags associated with the far-right movement loyal to former President Donald Trump.
The proposals are a long shot because a constitutional amendment or congressional action — two routes that would likely be needed — are next to impossible in the current political climate. But the plans themselves mark a sea change for Biden who had previously resisted any changes to the court. Although it is unclear if Biden can make headway on the issue in his remaining months in office, the White House believes the issue of Supreme Court reform polls well among independent voters, Republican voters, and a large swath of important demographic groups.
In 2021, soon after he was inaugurated, Biden set up a presidential commission on the Supreme Court, keeping a campaign promise he made when repeatedly pressed on whether he would expand the Supreme Court to pack it with justices more aligned with his worldview. Candidate Biden said he opposed expanding the court but said he favored the kind of bipartisan commission that the White House set up.
In December of that year, the panel – comprising legal éminence grise – issued a report that said Congress has the power to enlarge the court, but the panel took no position on doing so. On term limits, it appeared to suggest that a constitutional amendment was likely necessary, and pointed to the practical difficulties of implementing term limits at the same time that there are sitting justices with life terms on the court.
Copyright 2024, NPR
Ilya Somin | 7.29.2024
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Today, President Joe Biden announced his support for three reforms: term limits for Supreme Court justices, a constitutional amendment denying the president immunity for crimes committed while in office, and a binding ethics code for Supreme Court justices. He laid out these ideas in a Washington Post op ed. My general reaction is similar to that outlined in my previous post on this topic: all three ideas are potentially good. But Biden is short on details, and term limits can only be properly adopted by a constitutional amendment. As noted in my earlier post, there is also an obvious political dimension to this announcement:
The Supreme Court has become highly unpopular. Currently, it only has an approval rating of about 36% in the 538 average of recent polls, with about 56% disapproving. Targeting the Court might be good politics…. Moreover, if reports about the proposals are correct, Biden has focused on ideas that are generally popular, such as term limits, while avoiding the much less popular (and very dangerous) idea of court-packing.
While I have been highly critical of several of the Court's recent decisions, I also think the conservative majority has many many good rulings, and that much of the left-wing criticism of the Court is overblown. But majority public opinion has a significantly more negative view of the Court than I do, thereby creating potential political momentum for various reforms.
When these ideas were first floated a couple weeks ago, Biden was still trying to salvage his own presidential campaign. Now, they could help bolster that of VP Kamala Harris (who has endorsed them). Josh Blackman is almost certainly right to note the proposals have virtually no chance of being enacted while Biden is still in office. But I think he goes too far in labeling them "pointless." Now that they have been endorsed by the current and future leaders of the Democratic Party, the chance they might eventually be enacted in some form has significantly increased. That's true of any policy idea adopted by one of the two major parties.
Below are a few comments on each of the three proposals.
Here's Biden on the amendment stripping presidential immunity:
I am calling for a constitutional amendment called the No One Is Above the Law Amendment. It would make clear that there is no immunity for crimes a former president committed while in office. I share our Founders' belief that the president's power is limited, not absolute. We are a nation of laws — not of kings or dictators.
I agree. The Supreme Court's badly flawed recent ruling in Trump v. United States goes way too far in granting such immunity to the president. Biden is wrong to suggest that, in the wake of the ruling, "there are virtually no limits on what a president can do." In reality, the decision is vague on several key points, thereby making it difficult to figure out exactly how much immunity it actually gives the president.. Also, there are non-criminal constraints on presidential power (e.g.—people can go to court to get an injunction against illegal executive orders). Still, broad presidential immunity is a bad thing, and enacting a constitutional amendment to abolish all or most of it would be good.
However, Biden tells us next to nothing about the details of such an amendment. I think the version recently proposed by 49 Democratic members of Congress is very good. Not clear whether Biden—and, more importantly, Harris—would support it, or some other approach. In addition, as I previously noted, the odds against enacting any controversial constitutional amendment are extremely long.
Biden on term limits:
Second, we have had term limits for presidents for nearly 75 years. We should have the same for Supreme Court justices. The United States is the only major constitutional democracy that gives lifetime seats to its high court. Term limits would help ensure that the court's membership changes with some regularity. That would make timing for court nominations more predictable and less arbitrary. It would reduce the chance that any single presidency radically alters the makeup of the court for generations to come. I support a system in which the president would appoint a justice every two years to spend 18 years in active service on the Supreme Court.
Here, I have little to add to what I said before. Term limits for SCOTUS justices are a good idea, with broad support from both experts and the general public. A system of 18-year terms is also good, and similar to that proposed by various legal scholars. But any term limit plan must be enacted by constitutional amendment, not merely by a congressional statute. The latter would be unconstitutional, and would set a dangerous precedent, if it succeeded.
Annoyingly, Biden doesn't tell us whether term limits should be enacted by amendment or statute. He also doesn't address the difficult issue of how to handle current justices. Including them in the term limit plan (effectively forcing some to retire soon) would anger the right. Not doing so would likely offend the left.
Biden on a binding ethics code:
I'm calling for a binding code of conduct for the Supreme Court. This is common sense. The court's current voluntary ethics code is weak and self-enforced. 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. Every other federal judge is bound by an enforceable code of conduct, and there is no reason for the Supreme Court to be exempt.
Unlike with term limits, Congress has broad (though not unlimited) power to enact ethics restrictions on the Supreme Court. I'm fine with requiring justices to disclose gifts (though there should be an exemption for small ones; no need to disclose every time a friend takes a justice out to dinner or the like). Indeed, I would go further and suggest large gifts should be banned outright. It also makes sense to require justices to "recuse themselves from cases in which they or their spouses have financial or other conflicts of interest." Justices already routinely recuse when there are financial conflicts. However, much depends on what qualifies as an "other conflict of interest." I don't think the mere fact that a spouse has been active on an issue in the political arena qualifies.
As for refraining from "political activity," it depends on what counts as such. Justices should not endorse or campaign for political candidates (to my knowledge, no modern justice has done that). On the other hand, it's fine for them to express views on various law and public policy issues. Both liberal and conservative justices routinely do so in variety of writings and speeches. For example, both Justice Gorsuch and Justice Sotomayor have publicly advocated policies to expand access to legal services. Such advocacy is a useful contribution to public discourse, and should not be banned, though I am no fan of Sotomayor's proposal to impose "forced labor" on lawyers (her term, not mine).
Finally, Biden doesn't say how the ethics code would be enforced, or what the penalties for violations would be. For obvious reasons, those details are extremely important.
In sum, all three of these proposals potentially have merit. But the details matter, and Biden hasn't given us much on that score.
Ilya Somin is Professor of Law at George Mason University, and author of Free to Move: Foot Voting, Migration, and Political Freedom and Democracy and Political Ignorance: Why Smaller Government is Smarter.
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