The Supreme Court “has never been as out of kilter as it is today,” Biden stressed. He then listed a number of rights (access to contraception, same-sex marriage) that Justice Clarence Thomas has argued should be reconsidered.
Preventing more Trump appointees should be a strong selling point for Biden. But he might not get the chance to appoint justices — or at least, not right away. Moreover, the current court’s ideological excesses as well as its ethical blunders cry out for long-term, serious court reform. Will Biden push for such measures?
The White House has been mum on ethics reform, leaving the issue to Senate Democrats, who inexplicably have yet to bring the Supreme Court ethics bill that the Senate Judiciary Committee passed last year to the floor for a full vote. There is no reason Biden should not publicly push for the bill.
Moreover, to the dismay of court reform advocates, Biden has never embraced any further structural reform. During the 2020 campaign, he resisted calls for term limits or court expansion. Once elected, he appointed an all-star, bipartisan commission to study court reform. It published an impressive report, but Biden took no action.
The commission’s report is worth revisiting. Though the commission declined to provide a unified recommendation, it presented a compelling case for term limits: “Proponents of term limits argue that they would help ensure that the Court’s membership is broadly responsive to the outcome of elections over time; make appointments to the Court more predictable and less arbitrary; reduce the chances that excess power might be concentrated in any single Justice for extended periods of time; and enhance the Court’s decisionmaking by ensuring regular rotation in decisionmakers, while maintaining judicial independence by guaranteeing long terms and lifetime salaries.”
The commissioners also recognized the considerable bipartisan support among the public and scholars. As they wrote, “In testimony before the Commission, a bipartisan group of experienced Supreme Court practitioners concluded that an eighteen-year non-renewable term ‘warrants serious consideration.’ Major think tanks and their leaders have also endorsed the concept, as have both liberal and conservative constitutional scholars.”
Critics of term limits on the commission questioned the constitutionality of limiting terms by statute. They also noted the difficulty of passing a constitutional amendment and the time it would take for staggered terms to produce a significant shift in the court’s composition.
The commission also considered the more controversial proposal to expand the size of the court (perhaps to 13, matching the number of circuits), with the new appointments spread over multiple presidential terms. There is no magic to the current number of nine, which has not always been in place. The size is tiny compared with courts in other Western democracies. Nevertheless, opponents of expansion expressed fear of reaching an unwieldy number of justices and a vague sense that we should not end “an enduring bipartisan norm against Court packing.” (The bipartisan norm against ripping up decades of precedent seems to have gone by the wayside.)
The White House unfortunately took up none of these ideas. But that was before the Dobbs decision overturning abortion rights, among the court’s recent serial outrages. It now behooves the president to embrace one or more of the proposals and make court reform an election issue.
Biden’s advisers might argue that court reform is not attainable, given Republicans’ capacity to filibuster. But similar arguments have not stopped Biden from pushing to codify Roe v. Wade, which would almost certainly face a filibuster. If he is willing to modify the filibuster to protect abortion, there is no reason to withhold support for court reform that would serve to protect the rights on Thomas’s hit list.
Moreover, term limits have increased in popularity since the commission issued its report. A July 2022 AP-NORC poll found that “67% of Americans support a proposal to set a specific number of years that justices serve instead of life terms, including 82% of Democrats and 57% of Republicans.” Likewise, a University of Massachusetts Amherst poll from June 2023 found that 65 percent of Americans favored term limits for justices. Last month, Hart Research published a poll on behalf of Stand Up America, a pro-democracy advocacy group, and found that 64 percent (including 51 percent of Republicans) approve of term limits.
Term limits are also popular with legal scholars of all ideological stripes. Reuters reported in October, “A bipartisan group of legal experts including a federal appeals court judge and a former U.S. solicitor general on Wednesday threw their support behind 18-year term limits for U.S. Supreme Court justices, calling the proposal a ‘vital reform’ that would reduce partisanship and improve the judiciary’s overall reputation.” That group included conservatives such as Charles Fried, solicitor general under Ronald Reagan, and Akhil Reed Amar, an “originalist” scholar at Yale Law School.
In sum, Biden should align his policy and his rhetoric. A firm commitment to ethics reform would focus attention on the ethical blunders of Thomas and Justice Samuel A. Alito Jr. It would also put Republicans on defense and build consensus for the idea. With public opinion strongly on his side, Biden can push for term limits even if he doesn’t want to embrace the more controversial idea of court expansion.
The more focus on the Supreme Court, whose approval is historically low and whose rulings infuriate large numbers of voters, the better for Democrats. If Biden prevails and Democrats win majorities in both houses, he can then claim a mandate to push forward.
The court is broken, unpopular and in dire need of reform. Biden knows it and should make court reform a key campaign issue.
Credit: Source link
