The Fix Is In
The progressive effort to control the Supreme Court
On July 29th, at the Lyndon B. Johnson Presidential Library and Museum in Austin, Texas, President Joe Biden revealed his comprehensive plan to overhaul the Supreme Court. The proposed changes are straightforward:
No Immunity for Crimes a Former President Committed in Office: This proposal seeks to ensure that the President's power is limited and that the rule of law applies to everyone, including former presidents.
Term Limits for Supreme Court Justices: Biden believes that Supreme Court justices should serve for a limited term of 18 years. This would help to ensure that the Court's membership changes with some regularity and reduces the chance that any single presidency imposes undue influence for generations to come.
Binding Code of Conduct for the Supreme Court: This proposal calls for the establishment of a binding, enforceable code of conduct for Supreme Court justices. This code would require justices 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.
Many have compared this proposal to FDR's court packing scheme, also known as the Judicial Procedures Reform Bill of 1937, which proposed expanding the Supreme Court to as many as 15 judges. The idea was to add one justice for every sitting justice over the age of 70 who had served 10 years or more, with a cap of six additional justices. This was seen by many as a political ploy to get favorable rulings on New Deal legislation that the Court had previously struck down. FDR’s plan ultimately failed due to strong opposition from both political parties with many arguing that it was an attempt to undermine the independence of the judiciary and concentrate too much power in the executive branch.
Strictly speaking, however, Biden’s proposal is not court packing as most of us would understand it. It does not change the number of justices, but instead limits the number of years the justices would be permitted to serve. There does not appear to be anything unconstitutional with the proposal either. While Biden may not have the authority to unilaterally make the changes, the number of Supreme Court justices is determined by Congress, not the Constitution. The Constitution grants Congress the authority to establish and modify the size of the Supreme Court which it has done on several occasions:
Original Number: The Judiciary Act of 1789 established the Supreme Court with six justices.
Changes Over Time:
1801: The number of justices was reduced to five by the Judiciary Act of 1801, but this change was short-lived.
1802: The Judiciary Act of 1802 restored the number to six.
1837: Congress increased the number to nine, where it has remained since then. This change was partly due to the expansion of the federal judicial system and the need for more justices to handle the growing caseload.
There’s no reason to think that term limits and a code of conduct would be considered unconstitutional either. That is not to say that the proposal is not deeply flawed nor that the reasons given for the recommended changes aren’t partisan in nature.
Immunity
This proposal stems from a verdict by the Supreme Court earlier this year which ruled that former presidents are “immune from federal prosecution for constitutional official acts he took while serving as President.” At the time Biden stated:
“Today's decision almost certainly means that there are virtually no limits on what the president can do. The power of the office will no longer be constrained by the law, even including the Supreme Court of the United States. The only limits will be self-imposed by the president alone.”
I am on record as stating that I agree with the Supreme Court ruling, presidents require some immunity if they are to perform their job effectively. Given President Biden’s comments at the time and the Democrats’ efforts to use lawfare to prevent President Trump from running the partisan nature of this part of the proposal is obvious.
Term Limits
This proposal, along with the next one, seems to make a lot of sense but in reality, accomplishes very little. Given the age-related issues experienced by President Biden lately, term limits seem like a good idea. There are two problems with this proposal. The first is intent. The Democrats didn’t seem to have a problem with the ages of the Justices when Ruth Bader Ginsburg was on the bench. She passed away on September 18th, 2020, at 87 which would have made her 75 when Obama was first elected and 83 when he left office. Clarence Thomas, at 74, is currently the oldest of the justices. If age was really the concern the Democrats had 8 years of Obama and the first 3 years of the current Biden administration to make this proposal.
The stated reason to “ensure that the Court's membership changes with some regularity and reduces the chance that any single presidency imposes undue influence for generations to come” is closer to the truth. This is not about age but about influence. The Democrats do not relish having to wait for another justice to die for them to be able to appoint another liberal justice. Nor does their plan of “encouraging” one of the older liberal justices to retire so that Biden can appoint a younger one get them what they need. The court currently only has 4 liberal justices and to ensure that the progressive agenda isn’t held up by the court the Democrats need to replace at least one conservative justice with a liberal one. Establishing an 18-year term limit could conceivably give Biden the right to replace Clarence Thomas (1991), John Roberts (2005), and Samuel Alito (2006).
The final flaw in this proposal is that it wouldn’t work. Creating a predictable retirement schedule for the justices would just ensure that the court was further politicized. The parties would be incentivized to manipulate the system by convincing “their” justice to retire early during a friendly presidential administration so that a likeminded replacement could be appointed. Changes to the political leaning of the court would still rely on unexpected illnesses and deaths.
Binding Code of Conduct
The proposal is in response to controversies surrounding the court, including allegations of undisclosed trips and gifts from wealthy benefactors to some justices. For example, Justice Clarence Thomas took undisclosed trips aboard a private jet provided by Republican megadonor Harlan Crow in 2010 and 2019 while Justice Sonia Sotomayor has taken trips to Six Flags. The code of conduct would require justices to disclose gifts, refrain from public political activity, and step aside from cases in which they or their spouses have financial or other conflicts of interest. Who could be opposed to this?
The issue here isn’t that the suggestion is unreasonable but that it won’t do anything. There is already a process in place to impeach a Supreme Court justice for "Treason, Bribery, or other high Crimes and Misdemeanors." This is the same standard used for impeachment of other federal officials. Taking trips and receiving gifts can be construed as a form of bribery meaning so the impeachment process already exists to deal with it. “But,” the argument goes “the impeachment process is partisan and ineffective, so we need something new.” How a code of conduct would fix this problem is unclear given that any code of conduct review board would be created by Congress rendering it just as partisan and ineffective as the impeachment process.
The fact of the matter is that while only 30% of the public has a “great deal” or “quite a lot” of confidence in the Supreme Court, that puts it head and shoulders above both the presidency and Congress. Giving either of those two branches of government more oversight of the Court would only further diminish public confidence in it.
Conclusion
Biden’s plan to overhaul the Supreme Court seems fair and reasonable, but it has two minor problems: 1) it’s partisan and self-serving and 2) it won’t work.
This isn’t to say that there aren’t problems with the court. It is after all a human institution and therefor prone to the flaws of human nature. The problem with this progressive approach is similar to the problems of all leftist “solutions” (see: Communism), it supposes that if the right structure is found all problems will melt away. The changes Biden suggests won’t fix the problems because the problems are not structural, they’re human. More specifically, ideological. The Supreme Court won’t approve Biden’s policies because it doesn’t think they are Constitutional.
This assumes that fixing the court is the actual goal of the proposal, an assumption that I sincerely doubt. I suspect that the true motive for these proposals is similar to why FDR wanted to stack the court back in 1937, it won’t do as it’s told. Biden and the Democrats have faced a number of court related setbacks including:
A workplace vaccine mandate was ruled unconstitutional on January 13, 2022
Roe v. Wade was overruled on June 24, 2022
Biden's Student Debt Relief program was struck down in June 2023
These ruling have led the Biden administration to the conclusion that the only way that the court will pass Biden’s various agenda is if the court is packed with progressive judges. Rather than try to make their policies fit the court’s interpretation of the constitution, (or reach a political compromise with the Republicans), Biden and his progressive allies would rather remake the court to align with their world view. Overhauling the court has nothing to do with fixing it. Unless that is we use “fix” in the same sense that the mafia does. When Biden and his progressive mafia enter the ring with the Supreme Court, they want to ensure that the fix is in.