President Joe Biden unveiled on Monday his plan to reform the Supreme Court.
For years, Democrats have been on a war path demanding the Supreme Court be overhauled because former President Donald Trump had the opportunity to appoint three justices to the court. Now, Biden — a lame-duck president — is trying to appease progressives on his way to retirement.
Writing in the pages of the Washington Post, Biden made three proposals.
1. ‘No One Is Above the Law Amendment’
In his essay — which was almost certainly written by a White House staffer — Biden proposed a new constitutional amendment called the “No One Is Above the Law Amendment.”
To state plainly: Presidential power is tightly limited, and the president himself is not the arbiter of the limits of his power.
“It would make clear that there is no immunity for crimes a former president committed while in office,” Biden wrote. “I share our Founders’ belief that the president’s power is limited, not absolute. We are a nation of laws — not of kings or dictators.”
The basis for the amendment is untethered from reality.
Biden ironically claimed that a Supreme Court decision outlining presidential community “means there are virtually no limits on what a president can do.” He further claimed the “only limits” of presidential power “will be those that are self-imposed by the person occupying the Oval Office.”
But that’s not true. That is not what the Supreme Court ruled.
“The President is not above the law,” wrote Chief Justice John Roberts in Trump v. United States.
Contrary to what Biden’s op-ed claimed, the limits of presidential power are clear: The president is immune from criminal prosecution only in cases when he is carrying out his “official” presidential duties. That’s why former President Barack Obama was never prosecuted for droning American citizens.
On the other hand, a president does not enjoy immunity for “unofficial acts” — those not within his constitutional duties as chief executive.
To state plainly: Presidential power is tightly limited, and the president himself is not the arbiter of the limits of his power.
2. Term limits for justices
Second, Biden proposed that Supreme Court justices be limited to 18-year terms, with a new justice being appointed to the court every two years.
‘Not only are they unconstitutional, but they will have the exact opposite result proponents wish for.’
Biden claimed that “term limits would help ensure that the court’s membership changes with some regularity,” adding that term limits “reduce the chance that any single presidency radically alters the makeup of the court for generations to come.”
Progressive institutes have proposed this specific reform for years.
Biden tried to sell the idea by noting, “The United States is the only major constitutional democracy that gives lifetime seats to its high court.”
But the reasons why the Supreme Court does not have term limits are not insignificant.
Not only are term limits currently unconstitutional, but imposing term limits and guaranteeing that a president gets to appoint two justices every four years would almost certainly make the court more political — not less.
Legal scholar Anthony Marcum explained at USA Today:
Although well-intentioned, term limits have a problem. Not only are they unconstitutional, but they will have the exact opposite result proponents wish for. More, term limits will ensure that court vacancies are inextricably tied to every presidential race and has the potential to create abrupt ideological shifts on the highest court, only increasing the political scrutiny. In other words, term limits will not lower the temperature around nominations, they will leave the country scorched.
…
Yet term limits would regularize the process, and in turn tie two Supreme Court seats to every presidential cycle. A single two-term president could pick 44% of the court. If two presidents of the same party served three or four consecutive terms, an overwhelming majority of the court would quickly be ideologically one-sided. In the span of only a few years, a court of eight Scalias could turn to eight Ginsburgs. Certainly, the chance for such a dramatic ideological shift in the highest court would only put a greater spotlight on it during presidential elections and judicial confirmations.
3. Ethical code of conduct for Supreme Court
Finally, Biden wants a “binding code of conduct for the Supreme Court.”
The Supreme Court, however, already self-imposes an ethics code. But Democrats are not satisfied with that because, as Biden wrote, it is “voluntary” and “weak.” Biden did not provide any examples of how it is “weak.”
“Justices should be required 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,” Biden added. “Every other federal judge is bound by an enforceable code of conduct, and there is no reason for the Supreme Court to be exempt.”
This is the least controversial of the three proposals. But the underlying implication is not true.
Just because the Supreme Court imposes its own ethical code does not mean it is without accountability.
The truth is that while progressives for years have accused Justices Clarence Thomas and Samuel Alito of ethical improprieties, they have produced no actual evidence to corroborate their claims.
One major question
While Biden’s first two proposals will likely never become law, that Biden is choosing this moment to demand Supreme Court reform raises a major question.
Would Biden and Democrats be demanding change if the Supreme Court had ruled the way they wanted on abortion, presidential immunity, executive-branch power, student-loan forgiveness, the Second Amendment, and a host of additional issues?
The answer to that question likely reveals the motive for their demands.
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Joe biden, Supreme court, Constitution, Politics
