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President Joe Biden has proposed three remedies to stem the Supreme Court's increasing loss of credibility with the American people. First, he proposed a constitutional amendment to revoke the Court's decision, giving a former president immunity for crimes committed in office. Biden's second proposal is to reduce the term of service for Supreme Court justices from life to 18 years. And third, Biden has called for a binding code of ethical conduct for justices. Biden's plan does not acknowledge that all three remedies may also require constitutional amendments. And amending the Constitution will undoubtedly be fraught with difficulties. Biden's plan is also silent concerning some of the most troublesome aspects of the current Court, including the determination of six justices to subvert the Constitution. The difficulty of implementing Biden's plan and its omissions raises the question of whether it meant to be the beginning of an effort to solve serious problems or a way of avoiding that effort.
Limiting Supreme Court justices' terms may also require a constitutional amendment despite the many benefits of term limits. The scheme suggested to forego amending the Constitution is unlikely to persuade interested parties. Since the deliberation preceding the ratification of the Constitution, there has been general agreement that the phrase in Article III, section 2, that Supreme Court justices "shall hold their offices during good behavior" means during their lifetime, except for impeachment and conviction. One idea suggested to get around the need for a constitutional amendment is establishing a new type of justice: senior justice. After eighteen years, according to a kind of scheme, justices will assume the position of senior justice with limited duties.
Biden's plan also calls for ethics reform, meaning that the Chief Justice can remove a justice from any case in which that justice has a conflict of interest and refuses to recuse himself. Along with the egregious failure of Justice Thomas to remove himself from a case in which his wife proclaimed her participation, other cases warranted justice recusal, but the judicial standard was ignored. However, the Constitution does not anticipate the forced removal of a justice by the Chief Justice. The only sanction permitted by the Constitution is impeachment and removal from the Court if convicted.
Even if the three issues identified by Biden could be fixed, his plan does not address the three most troublesome issues affecting the Court. The Court has demonstrated that it intends to remake the country using powers far beyond those envisioned by the founders. During his confirmation, for example, Chief Justice Roberts acknowledged that the Court's role is to call balls and strikes. In critical decisions such as Citizens United, Roe v. Wade, and Chevron USA, the Court has ruled in a way that suggests a conservative bias. A second issue that should be discussed is how constrained the justices' spouses should be. For example, Chief Justice Roberts' wife has earned $10 million as a recruiter for firms seeking lawyers to practice before the Court. And the circus atmosphere of Justice Kavanaugh's confirmation raises the question of how confirmation can be reformed.
These are important issues that Democrats must address to enact the policies that they have pledged to address. Republicans, however, after securing a court that tilts in their direction, will fight hard to ensure that it is not meaningfully changed. These issues may need to be addressed through constitutional amendments. But the process of amending the Constitution is arduous. First, two-thirds of both houses of Congress must vote to propose an amendment. Or two-thirds of state legislatures can ask Congress to convene a national convention to propose amendments. Then, three-fourths of state legislatures or three-fourths of the state conventions must approve the amendments. Most people are suspicious of that route because state conventions could lead to unanticipated proposed amendments. Alternatively, the political division in this country reflected in Congress makes it nearly impossible to achieve two-thirds of the majorities in both Houses.
The Supreme Court must be fixed if Democrats want to secure the policies they have pledged to achieve. Various commentators have noted the toxic effects of some of the Court's rulings. Still, they have not recognized the implications of these and future rulings on the threat to our democracy posed by the makeup of the current Supreme Court. For example, the Court's Citizen's United ruling has allowed unlimited money in politics. And Shelby County v. Holder has repealed protections against voter suppression. As crucial as these attacks are against our democracy, their most significant import is what they say about the current makeup of the Supreme Court. Senator Sheldon Whitehouse (D, RI) has analyzed the Court's rulings since the beginning of Chief Justice Robert's 2005 ascension to the Court. He found that of the 73 cases decided by a 5-4 or 5-3 majority, 92 percent were decided in favor of Republican interests. Moreover, in 55 percent of the 73 cases, the conservative majority ignored conservative judicial philosophies such as stare decisis, judicial restraint, originalism, and textualism. In other words, this conservative majority will rule for the Republicans regardless of what it takes.
If the Court is not fixed, then it will be able to block any attempt by the majority of voters to move toward the society they want and democratically vote to attain. A Democratic majority in the House, a 60-vote supermajority in the Senate, and the Presidency will not be able to overcome the six conservative members of the Supreme Court. Biden's plan is inadequate to overcome the Supreme Court. Biden either proposed his court reform plan as a marker or as a placebo. As a marker, Biden has given Harris and a Democratic Congress a goal to work toward with specifics to follow. As a placebo, Biden may be aware that Democrats will have no choice other than to accept the turmoil this Court will bring until enough conservatives are replaced to change the Court. With this attrition, Democrats will have issues to run on and keep the remaining federal government.
Limiting Supreme Court justices' terms may also require a constitutional amendment despite the many benefits of term limits. The scheme suggested to forego amending the Constitution is unlikely to persuade interested parties. Since the deliberation preceding the ratification of the Constitution, there has been general agreement that the phrase in Article III, section 2, that Supreme Court justices "shall hold their offices during good behavior" means during their lifetime, except for impeachment and conviction. One idea suggested to get around the need for a constitutional amendment is establishing a new type of justice: senior justice. After eighteen years, according to a kind of scheme, justices will assume the position of senior justice with limited duties.
Biden's plan also calls for ethics reform, meaning that the Chief Justice can remove a justice from any case in which that justice has a conflict of interest and refuses to recuse himself. Along with the egregious failure of Justice Thomas to remove himself from a case in which his wife proclaimed her participation, other cases warranted justice recusal, but the judicial standard was ignored. However, the Constitution does not anticipate the forced removal of a justice by the Chief Justice. The only sanction permitted by the Constitution is impeachment and removal from the Court if convicted.
Even if the three issues identified by Biden could be fixed, his plan does not address the three most troublesome issues affecting the Court. The Court has demonstrated that it intends to remake the country using powers far beyond those envisioned by the founders. During his confirmation, for example, Chief Justice Roberts acknowledged that the Court's role is to call balls and strikes. In critical decisions such as Citizens United, Roe v. Wade, and Chevron USA, the Court has ruled in a way that suggests a conservative bias. A second issue that should be discussed is how constrained the justices' spouses should be. For example, Chief Justice Roberts' wife has earned $10 million as a recruiter for firms seeking lawyers to practice before the Court. And the circus atmosphere of Justice Kavanaugh's confirmation raises the question of how confirmation can be reformed.
These are important issues that Democrats must address to enact the policies that they have pledged to address. Republicans, however, after securing a court that tilts in their direction, will fight hard to ensure that it is not meaningfully changed. These issues may need to be addressed through constitutional amendments. But the process of amending the Constitution is arduous. First, two-thirds of both houses of Congress must vote to propose an amendment. Or two-thirds of state legislatures can ask Congress to convene a national convention to propose amendments. Then, three-fourths of state legislatures or three-fourths of the state conventions must approve the amendments. Most people are suspicious of that route because state conventions could lead to unanticipated proposed amendments. Alternatively, the political division in this country reflected in Congress makes it nearly impossible to achieve two-thirds of the majorities in both Houses.
The Supreme Court must be fixed if Democrats want to secure the policies they have pledged to achieve. Various commentators have noted the toxic effects of some of the Court's rulings. Still, they have not recognized the implications of these and future rulings on the threat to our democracy posed by the makeup of the current Supreme Court. For example, the Court's Citizen's United ruling has allowed unlimited money in politics. And Shelby County v. Holder has repealed protections against voter suppression. As crucial as these attacks are against our democracy, their most significant import is what they say about the current makeup of the Supreme Court. Senator Sheldon Whitehouse (D, RI) has analyzed the Court's rulings since the beginning of Chief Justice Robert's 2005 ascension to the Court. He found that of the 73 cases decided by a 5-4 or 5-3 majority, 92 percent were decided in favor of Republican interests. Moreover, in 55 percent of the 73 cases, the conservative majority ignored conservative judicial philosophies such as stare decisis, judicial restraint, originalism, and textualism. In other words, this conservative majority will rule for the Republicans regardless of what it takes.
If the Court is not fixed, then it will be able to block any attempt by the majority of voters to move toward the society they want and democratically vote to attain. A Democratic majority in the House, a 60-vote supermajority in the Senate, and the Presidency will not be able to overcome the six conservative members of the Supreme Court. Biden's plan is inadequate to overcome the Supreme Court. Biden either proposed his court reform plan as a marker or as a placebo. As a marker, Biden has given Harris and a Democratic Congress a goal to work toward with specifics to follow. As a placebo, Biden may be aware that Democrats will have no choice other than to accept the turmoil this Court will bring until enough conservatives are replaced to change the Court. With this attrition, Democrats will have issues to run on and keep the remaining federal government.
