Biden's SCOTUS Reform Proposal is a Short-term Political Non-Starter But a Useful Conversation-Starter
[N.B. The following essay is unrelated to my latest Verdict column, also published today. That column concerns the impact on abortion rights of a ballot measure in New York State to broaden the state's constitutional equal protection guarantee.]
President Biden's proposed Supreme Court reform package has no chance of being enacted in the current Congress. Even before House Speaker Mike Johnson called the proposal "dead on arrival," it was clear that the Republican-controlled House would block it. To be sure, there is a very small chance it could be partially enacted before Biden leaves office. In the event that Democrats win the House and hold the Senate, and if they are willing to eliminate the filibuster for ordinary legislation (because there is no chance of Democrats securing 60 seats in the Senate), the new Congress could pass the package for President Biden to sign before he leaves office. That's because the 20th Amendment sets out a start date of January 3 for Congress but January 20 for the Presidency.
But it's hard to imagine Democrats taking the House and holding the Senate without also winning the Presidency, so in the foregoing scenario, there would be no immediate urgency to adopt SCOTUS reform during the final two weeks of Biden's Presidency rather than working towards it during a Harris Presidency. Moreover, the first of Biden's three proposals--overruling the recent immunity ruling in Trump v. United States--would require a constitutional amendment, as the proposal itself indicates. Indeed, it can be argued that all three measures could be achieved only by constitutional amendment.
The second proposal would impose 18-year term limits on Supreme Court Justices. This idea was advocated most forcefully by Paul Carrington and Roger Cramton (who was my predecessor in the chair I hold and my emeritus colleague until his death in 2017). Notably, it has received bipartisan support among scholars. (Roger himself was a Republican who held important posts during the Nixon and Ford administrations.)
It is unclear whether term limits could be imposed by ordinary legislation. Proponents of that view say that after Justices' 18 years are up, they would remain Article III judges who serve on lower federal courts. The key question is how to read Article III's statement that "The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour . . . ." The word "offices" suggests that the job of being a Supreme Court Justice is distinct from being a lower court judge, so the demotion would seem to violate the guarantee of life tenure (absent an impeachable offense) that the term "good behaviour" has always been understood to connote.
However, in the early Republic and under the terms of the Judiciary Act of 1789, which was written by the same key actors who wrote Article III, Supreme Court Justices simultaneously served as lower court judges when "riding circuit." Even today, retired (and even active) Supreme Court Justices can serve by designation on lower federal courts. Thus, it can be argued, the offices of Supreme Court Justice and lower court judge are not constitutionally distinct, and so, under this view, 18-year term limits would not require a constitutional amendment. With the ultimate resolution of the issue likely in the hands of the extremely self-interested Supreme Court itself, it is easy to imagine that ordinary legislation would nonetheless be deemed inadequate to impose term limits.
The third proposal would subject Supreme Court Justices to the same Code of Judicial Conduct that applies to lower federal court judges. As a policy matter, the Code would probably need to be tweaked a bit in its application to the Supreme Court. Although I was critical of the Court's own statement on judicial ethics last year, I acknowledge the truth of one point that statement made: recusal by a lower court judge results in a substitute judge, but because the Supreme Court has a nine-Justice roster, recusals can result in tie votes, no quorum, or at a minimum, distorted deliberation. My own preference would be to develop a system for substituting randomly selected retired Justices (when there are such retirees able and willing to serve) or appeals court judges for recused Justices, but even if that approach were not adopted, one would need some modification of the recusal rule.
Last year, Justice Alito opined in an interview that Congress lacks the power to regulate the Supreme Court in the way that it regulates lower federal courts because, while the Constitution empowers Congress to create or not create the lower federal courts, the Constitution itself creates the Supreme Court. I strongly disagreed with that claim then. As I explained in a Verdict column, Congress has long regulated the Supreme Court's jurisdiction pursuant to express constitutional authorization; Congress also regulates the Supreme Court's size, its budget, and yes, even its ethics. Nonetheless, it is possible to imagine Justice Alito persuading four of his colleagues to join him in ruling that Congress lacks the power to enact a binding ethics code for the Supreme Court through ordinary legislation.
Amending the Constitution to accomplish one, two, or all three of President Biden's reform proposals is certainly dead on arrival in Congress, regardless of the outcome of November's election. Proposing an amendment for state ratification requires a 2/3 vote of each house of Congress. Given polarization, that is a non-starter. I reach that conclusion even though, as noted above, there has been bipartisan support for term limits. The very fact that a Democratic President is proposing the reforms ensures Republican opposition.
Although Biden's SCOTUS reform proposal is indeed a political non-starter, it is nonetheless a useful conversation-starter. All three of the proposals are sound on the merits.
(1) Trump v. United States is an abomination.
(2) The United States is virtually unique in giving life tenure to judges on its apex/constitutional court. The practice results in numerous distortions. It incentivizes Presidents to nominate young relatively inexperienced jurists. It incentivizes Justices who wish to see their legacy preserved to stay on the Court when they ought to retire or to time their retirements to the political cycle. And it distorts the ideological balance relative to the political cycle in favor of whichever party has more luck or is better at playing judicial appointments hardball (lately, the Republicans).
(3) There is no good reason why Supreme Court Justices should not be bound by a code of ethics. Yes, there needs to be a recusal tweak, but the substantive rules ought to be the same. Justices on the highest court in the land should have the highest ethical standards, not the lowest.
By setting forth these proposals, President Biden gives Vice President Harris and down-ballot candidates a potent issue on which to campaign. Furthermore, he sets out a long-term agenda.
The extreme conservatism of the Roberts Court--overruling Roe v. Wade, invalidating affirmative action, gutting protections for voting rights and labor rights, creating constitutional gun rights, weakening separation of church and state, and undercutting the administrative state--did not come out of nowhere. It is the culmination of a determined decades-long campaign that began during the Reagan administration and has been nurtured by institutions like the Federalist Society. True, none of the Roberts Court's achievements would have been possible without confirmation hardball, luck, and exploitation of the undemocratic features of the U.S. Constitution that give conservatives political power disproportionate to their numbers. But it was also crucial that, once they secured power, they had a program to carry out.
Seen in that light, the Biden proposal is extremely modest. It does not include the most controversial idea for SCOTUS reform: expansion to counteract the hardball tactics of Mitch McConnell. And it is but one small piece of a truly progressive project for reforming American law. Such a project would include the mirror image of the conservative project, but it also might well go further to build out the kinds of guarantees found in democracies with constitutions of more recent vintage--including social, economic, and cultural rights, as well as the institutions to make those rights a practical reality.
None of that is possible in the political near term. But without an agenda, it will be that much harder to get to the long term. The Biden proposals are a useful start.