President Joe Biden’s proposal to reform the U.S. Supreme Court is more an opening bid in a high-stakes political poker game than it is a serious proposal.
It’s designed to put pressure on the justices sitting on the nation’s high bench to clean up their house and modulate their behavior, as responsible members of any community should do.
But it’s not likely to produce systemic change.
Biden’s moderation is wise.
Political game-playing with the court and its makeup has intensified steadily and then exponentially over the past 40 years, with disastrous results. The Supreme Court once was one of the most revered institutions in American life. Now, public approval ratings for the court reside somewhere in the sub-basement level.
This is unfortunate, because such a lack of confidence in the high bench also creates a lack of faith in the rule of law.
And a belief that the law will be applied fairly and consistently is essential to a self-governing society.
Biden issued his call to reform the court with an op-ed piece in The Washington Post.
The president called for three changes.
The first didn’t have anything to do with the Supreme Court or the way it operates.
It requested a constitutional amendment that would overturn the court’s recent, nonsensical decision that greatly expanded presidential immunity. Biden called his requested change the “No One Is Above the Law Amendment.”
Adopting a constitutional amendment is a cumbersome process, which is why it’s been done relatively rarely in U.S. history — and not with success in a half-century. The notion that any amendment, much less one that would be perceived as partisan as this one will be, could be adopted now is fanciful.
Biden is smart enough to know that.
He likely offered the suggestion to put Republicans in the position of defending the indefensible — namely, the insurrection on Jan. 6, 2021, and former President Donald Trump’s repeated claims that the nation’s laws don’t apply to him.
Biden’s second proposal is equally unlikely to become a reality.
He suggested that Supreme Court justices have term limits of 18 years and that presidents be able to nominate a new one every two years.
This approach, Biden argued, would prevent presidents and the U.S. Senate from maneuvering to pack the court, because every president would make two appointments during each four-year term. It also would discourage justices from lingering on the court until a president from their party was elected.
Perhaps, but this proposal also likely would require a constitutional amendment.
Article III Section 1 of the Constitution says:
“The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.”
“Good Behaviour” means that there is no limit on the time a justice may serve, other than any imposed by mortality or a judicial desire to retire — unless, that is, a member of the high court commits some serious transgression.
This brings us to Biden’s last proposal.
It’s the most serious one.
He calls for a binding code of conduct for the court.
Given the high-handed arrogance with which Justices Clarence Thomas and Samuel Alito have gobbled up gifts and other freebies from rich folks who have business before the court and their absolute refusal to recuse themselves even when their spouses are actively involved in matters requiring Supreme Court rulings, this is the reform that would do the most to restore public confidence in the judicial branch.
Justice, in order to be just, must be impartial.
Joe Biden has been involved in Supreme Court nominations and appointments for more than 50 years. He knows the process, and he knows the law.
If he really wanted to make a quick change to America’s high bench, he would have called for expanding the court’s size — an idea that would not violate the Constitution or require a time-consuming amendment process. The Supreme Court has had varying numbers of justices during our nation’s history.
But Biden didn’t sound that call.
Instead, he put pressure on the high bench to reform and rehabilitate itself — and created some space for the court to do that.
The president’s approach is prudent.
Too many politicians have played too many games with the judicial branch.
That is how it — and we — got into this mess.
John Krull is director of Franklin College’s Pulliam School of Journalism and publisher of TheStatehouseFile.com, a news website powered by Franklin College journalism students. The views expressed are those of the author only and should not be attributed to Franklin College. Send comments to [email protected].
