That term limits, equality before the law and a code of ethics are controversial is a sign of America’s debilitating dysfunction
President Joe Biden’s proposals for reforming the U.S. Supreme Court are not just completely reasonable—they’re also desperately needed and even rather mild. It is a sign of the deep dysfunction that has gripped American governance that they have almost no chance of being implemented.
The dysfunction comes from both an antiquated and rigid system in which the bar for reforms is as high as the need for them is urgent—and from a toxic degree of partisanship in which the instinct of the two main parties is not to agree, reflecting the social media echo-chamber-fueled anger of key constituencies on both sides.
That’s why America has such trouble doing basic and critical things if they get ensnared in politics, as basic and critical things will do. And few things are more basic and critical that getting right the separation of the branches and judicial oversight of the executive.
It is hard to overstate how much is wrong with SCOTUS. The process of nominating and confirming justices has become totally politicized, leading to perceptions that the Supreme Court is an extension of partisan politics rather than an independent arbiter of the law. This in turn robs the Supreme Court’s decisions of gravitas and respect, never mind anything resembling consensus based on a profound legitimacy.
In the wrong hands—read, Donald Trump’s—this tends to elevate justices who are themselves extremists. That makes it more likely that the court’s decisions break down along predictable lines, amplifying the resulting agitations. It doesn’t help that the Supreme Court’s decision-making process is typified by a lack of transparency.
Moreover, presidential nominees to the Court is vetted by the Senate, which is the developed world’s most anti-majoritarian parliament (other than, perhaps, Britain’s appointed House of Lords). Because each state gets two senators regardless of population, and because there is a wild divergence in the size of states, the states representing about a sixth of the country can account for half the senators. These will be mostly rural, conservative states, skewing everything dramatically toward the Republicans.
Even with that indefensible advantage accounted for, the current 6-3 super-majority for conservatives is unnatural and basically random, having to do with the timing of various justices’ deaths. It has been abused, along the predictable political lines, to overturn abortion rights, declare the president essentially above the law, and more. As a consequence, according to Pew Center research last year, less than half (44 percent) of Americans now have a favorable impression of the court, a historic low.
Biden could have chosen radical action—for example, “packing the court.” That would mean adding some justices to wipe out the conservative advantage. Interestingly, that provocative action is somewhat doable. Article III, Section 1 of the Constitution grants Congress power to structure the court and stipulates only that it “shall consist of one Chief Justice and such other Justices as the Congress may from time to time ordain and establish.”
He could have also tried to use the Dems’ current advantage in the Senate to elevate to the court Attorney General Merrick Garland, whose 2016 blocking as President Obama’s nominee stands as a monument to hypocrisy: The Republicans insisted almost a year before the presidential election was not enough time, then saw no problem confirming Amy Coney Barrett weeks before the 2020 election, basically because they could.
Another thing that is doable is restoring the 60-vote supermajority which had once been needed (and was eliminated in 2017 by the Republicans). That might force presidents to nominate moderate figures.
Biden did none of those things. Instead, true to his reasonable self, he’s calling (interestingly, in an oped in the Washington Post) for reforms that no reasonable person should oppose:
- A proposed constitutional amendment that would eliminate immunity for crimes committed by a former president while in office, reinforcing the principle that presidential power is limited and subject to the law, not above it.
- Term limits for Supreme Court Justices, similar to those for the presidency, which would ensure regular turnover on the court, making the timing of nominations more predictable and reducing the likelihood of any single presidency dramatically altering the court’s composition for decades. He proposes a system where the president appoints a new justice every two years for an 18-year term.
- A binding Code of Conduct which would include requirements for disclosing gifts, refraining from political activities, and justices recusing themselves from cases with conflicts of interest. This code would align the Supreme Court with other federal judges who are already bound by enforceable conduct standards.
- Are these obvious and necessary reforms hopeless? The first two are, because they probably require constitutional amendments and the bar for such amendments is impossibly high now. It’s not that the revered Founders didn’t want amendments—we have had 27 of them. They just didn’t know the demographics would work out as they have.The rules are that an amendment can be proposed either by a two-thirds majority in both the House of Representatives and the Senate or by a constitutional convention called for by two-thirds of state legislatures. To pass, it must be adopted by three-quarters of the states—which would be 38—by either a ratification in the legislature or via conventions. There is almost no way to get so many states to agree on anything seen as political, and the Republicans will make any Biden proposal political.This is the reason why we failed to pass the Equal Rights Amendment. And versions of this problem are why we cannot do so many, well, basic and critical things. For example, the country should police its borders very seriously, as a massive priority. It should also tightly control access to dangerous weapons. It should definitely ensure that voting is both easy for citizens and regulated carefully with voter ID. It should crack down on gerrymandering. Basic health care for all is guaranteed in every other developed economy.And, obviously, it should have the Supreme Court reforms proposed by Biden.Americans deserve a logical and pragmatic government. Instead, we have a cult of an antiquated constitution and politicians who have mostly lost the plot.
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