Supremely Improbable

By: James Trusty

President Biden’s pronounced objectives for Supreme Court “reform” are improbable, politically lifeless under a particularly lame duck presidency, and motivated by transparently November-driven calculations. But even if the proposed changes are doomed from the start, they push public discourse on a couple of issues that are red meat for the democrats.

The stated reforms are superficially simple ones: 1) to “clarify” that “there is no immunity for crimes a former president committed while in office,” 2) to limit SCOTUS appointments to 18-year terms, and 3) to create a mandatory/enforceable ethics code on the high court.

Some context for this agenda is in order. The “clarification” push flows directly, albeit inaccurately, from the recent immunity decision in Trump v. United States. The intended “reform,” then, is to announce that “no President is above the law.” Of course, if you take an hour to read the opinion, you will find Justice Roberts specifically declaring, “The President is not above the law,” before laying out the legal parameters for immunized vs. non-immunized conduct.

The term limits argument began as part of a trial balloon in 2021. That was the year that President Biden created a Presidential Commission on the Supreme Court. Some of the quite partisan members of this Commission expressly called for court packing—adding more Associate Justices to the bench who, quite un-coincidentally have a world view like the Commissioners—and they even denounced the conservative-led Court as no longer being a “place of solidity and rational discourse.”[1] Thankfully, court-packing seems to strike a distinctly destructive tone to most observers, and even though the number of justices is not Constitutionally mandated (and thus could be changed through Congressional action) the uproar from FDR’s effort to pack the Court and the absence of change since an 1866 law targeting Abe Lincoln’s successor, Andrew Johnson, suggests the chance of court-packing, at least, is slim at best.

Term limits would have the unintended consequence of politicizing the Court. The whole idea behind lifetime tenure is that it will remove the highest echelon of American lawyers from rank political considerations. It may not be perfect, and there are certainly plenty of buyer remorse moments for almost every President, but truncating the terms in office would incentivize the Justices to pay particular attention to the political tides before making important decisions. Aside from the issue of effectiveness, time limits suffer a much more lethal barrier: since it is the Constitution itself establishing life terms, it would take a Constitutional amendment to change that in any way. In short, I wouldn’t worry about this one until calls for a Congressional Convention break out across the land.

The third reform is to downplay the currently self-imposed ethics code at SCOTUS and instead come up with some sort of enforceable scheme. This proposal is obviously embraced by selectively offended court-watchers who accuse Justices Thomas and Alito of crossing ethical boundaries, with the claim usually raised around the same time a big decision is looming or just issued. When Justice Ginsburg disparaged President Trump there were very few pundits who recognized the import of that criticism by a sitting Associate Justice deciding cases involving the Trump administration. Instead, Justice Ginsburg was praised for her “well-known candor.”[2] Grandstanding notwithstanding, this third reform has at least some opportunity for traction, particularly with Justice Kagan’s recent call for enforcement mechanisms[3] and Justice Roberts’ apparent sensitivity to SCOTUS criticism. Despite the thorny separation of powers issues stemming from a Congressionally-mandated intrusion into SCOTUS ethics, Justice Roberts could reach out to embrace change here, which hopefully would include prohibitions against leaking impending decisions.

If these stated reforms are largely losers, then why push for them during the lame duck months of 2024? Claiming SCOTUS has given President Trump the status of a King Who Can Do No Wrong is a perfect extension of the whole Lawfare movement—even after the ruling’s brutal blow to DOJ’s effort to criminalize all-things-Trump, to suggest that Trump is just a crook with high court connections plays well within the echo chamber of lawfare proponents. Keeping abortion in the forefront of voters’ minds is obviously a central part of the election-year strategy, so even without successful reform, a steady reminder of the Court’s overturning of Roe v. Wade is political gold.

My biggest concern with the reform challenge is not the likelihood of any part of it living beyond the next few months and not the fact that it largely reflects a political platform and not a serious legal analysis. It is the pattern that has emerged most pointedly during the Biden years – if the President does not like the result from SCOTUS, then he comfortably attacks them as unprincipled politicians lurking behind their black robes.

President Biden claimed to have “great respect for our institutions” before launching into his latest attack, but this degradation of the Court has been going on for some time. For example, the Biden administration “[sought] to garner temporary favor with young voters by championing debt forgiveness, even when it knows the likelihood of success [was] quite low.” In other words, going into its improbable latching on to the HEROES Act to redistribute income, the administration was well aware that it was not going to fly. But after the Court predictably shot down the scheme, President Biden accused the Supreme Court of siding with Scrooge-like Republicans, and that the decision was not just a mistake but “was wrong.”[4] In my book, the Head of the Executive Branch should not debase the highest court in the land because he wants to bribe young debt holders into thinking they deserve a freebie.

When the Court overturned Roe, there was precious little to say about federalism, the legal landscape for hundreds of years before Roe, and why liberal justices and scholars alike had acknowledged the shaky intellectual underpinnings to the case, even as they clearly supported abortion rights. Instead, President Biden rushed to denounce the Court, claiming the lives “of women in this nation are now at risk”[5] because of “an extreme ideology and a tragic error by the Supreme Court.” I firmly believe there are irrational extremists on both sides of the abortion debate, and the debate stirs tremendous emotion (and consequently, division) with horrible regularity. But it is exactly because of the fact that abortion is a tinderbox subject that the Chief of the Executive Branch should not demonize the Court simply because he disagrees with their decision. The rhetorical arsonist does not just score a few political points or create a campaign issue in this case, he sets fire to the public’s respect of an institution, our Supreme Court. The more we come to accept harsh political attacks on the Court from within the White House, the more we reduce the image of the institution itself to a collection of political hacks, disconnected from weighty considerations of Constitution and precedent, content to wallow in the same political muck that surrounds our career politicians.

[1] https://www.politico.com/news/2022/07/07/joe-biden-supreme-court-commission-00044401

[2] https://www.cnn.com/2016/07/12/politics/justice-ruth-bader-ginsburg-donald-trump-faker/index.html

[3] https://www.nbcnews.com/politics/supreme-court/justice-elena-kagan-enforcement-supreme-court-ethics-code-needed-rcna163756

[4] https://www.whitehouse.gov/briefing-room/speeches-remarks/2023/06/30/remarks-by-president-biden-on-the-supreme-courts-decision-on-the-administrations-student-debt-relief-program/

[5] https://www.whitehouse.gov/briefing-room/speeches-remarks/2022/06/24/remarks-by-president-biden-on-the-supreme-court-decision-to-overturn-roe-v-wade/