At the LBJ Presidential Library in Saigon Austin, Texas, President Joe Biden made a major proposal to change the Supreme Court.
President Biden, warning that the country’s courts were being weaponized as part of an “extreme and unchecked” conservative agenda, said on Monday that he would push for legislation that would bring major changes to the Supreme Court, including term limits and an enforceable code of ethics on the justices.
Of course, what Biden means by “extreme and unchecked” might have something to do with the other tribe having greater control than his, and it would be less weaponized if it was the Warren court. But I digress.
Dean Erwin Chemerinsky, who reasonably expects his dinner guests to behave with courtesy, points out one of the ironies.
In 2021, Mr. Biden formed a bipartisan commission of lawyers and legal scholars to study and appraise possible changes to the court. It worked diligently and presented a lengthy report. Mr. Biden and most lawmakers ignored it. Now, he has rediscovered the issue.
Inexplicably, I was not asked to be on the commission. It must have been an oversight. The commission addressed the two primary issues raised by Biden, which the Senate Judiciary Committee had also been working on for months under Dick Durbin, who wasn’t so much as given a heads up that Biden was about to jump his issue and make him look irrelevant.
There is fairly widespread support for the 18 year term limit, formed to allow every president to appoint two justices per four year term.
Life expectancy now is much longer than it was in 1790 when the court first assembled. From then until 1970, the average tenure of a Supreme Court justice was approximately 15 years. For those appointed since 1970 who have left the bench, the average tenure was 26 years. Many of the current justices are likely to serve more than 30 years.
Chemerinksy, and others, argue that’s too long for one of the Nine to hold that much power. While it’s unclear to me what the length of a justice’s tenure has to do with anything other than a justice you hate remains on the Court for longer rather than than shorter, and it invites other forms of mischief when a justice knows well in advance when he or she is being put out to pasture, such as going out in a blaze of glory. But I digress again.
Of course, none of this is going to happen. Erwin says it’s “highly unlikely” that Biden can get a constitutional amendment through.** He’s wrong. It’s absolutely impossible. Not a chance in hell. If Biden were serious about it, he could have read the report of the commission he created at the start of his term and done something about it.
Now, as Biden slowly and stiffly walks into the sunset, he brings up a monumental change in the fabric and operation of another branch of government, over which neither he nor Congress has the power to control, Andrew Jackson notwithstanding.***
So what’s the point? To the extent there was any serious intention of pushing these reforms, the time to do so was at the start of his term, not after he withdrew his candidacy. Chemerinsky argues that since these reforms aren’t going to happen anyway, the “answer” is to not elect Trump and give him the opportunity to name any more justices to the Court.
Is the purpose to introduce another reason to vote for Kamala Harris, despite her history, fluctuating moderate and progressive positions and rhetorical skills? Or is Biden trying to throw a bomb into the election, as if the differences between Trump and anyone else aren’t clear enough? Or perhaps Biden is “priming the pump” for Harris to push for constitutional amendments if and when she’s elected?
Why now, and what will be the consequences of Biden’s adding Supreme Court reform to the long list of political issues at stake in this election?
*Tuesday Talk rules apply.
** Chemersinsky points out that some argue that Congress can accomplish this without a constitutional amendment. It’s nonsense and unworthy of discussion.
***After the Supreme Court’s decision in Worcester v. Georgia, President Jackson is famously alleged to have said, “John Marshall has made his decision, now let him enforce it.“
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Why now?
To set it up to fail or stall, allowing Harris to make a massive push for it once she wins, claiming the extreme right prevented these common sense reforms from passing.
Ah, but there’s nothing more amusing than the naked hypocrisy and self-interest of politicians on show, and especially when they seem so blind to it. Their arrogance never fails to shine through.
Maybe it’s something as simple as an old man pining for the day when he could assert some semblance of power and authority. Not that I would have any recent experience with something like that. (Oops, time to dry the dishes.)
I think some of the other speculations are more likely, but yours fits the President’s demonstrated skill for reading the back room, but not the room.
If Donald Trump wins in 2024 and the policy first applies to him, he will be able to replace John Roberts, Clarence Thomas, Samuel Alito, and Elena Kagan. This means that that from 2028 to late 2034, there will be seven Trump appointees on the Court. If JD Vance wins in 2028, he will get to replace Sonia Sotomayor.
Do those who favor the policy think it is still a good idea? I have always found that the test of principled support of a reform is when the reformer still supports it when it gores his ox.
That’s a good point. I don’t think the people pushing these “reforms” have thought past short-term advantages. It reminds me of when Dems got rid of the filibuster for Supreme Court nominees; and were specifically warned it would come back to haunt them when they were out of power (and it did) but didn’t care.
a. “It’s short-term advantages all the way down.”
b. “For every complex problem, there’s a solution that is simple, neat, and gives a short-term advantage.”
c. Marti DiBergi: “Why don’t you just make ten louder?”
Nigel Tufnel: “…..But what’s the short term advantage?”*
d. all of the above
*finally realizing today that Nigel’s amp maker probably just relabeled the knobs and didn’t change anything else
The “D’s” haven’t thought that through very well, have they? Although I believe for an amendment to pass the required number of states that currently serving Justices would be exlcluded from the 18 year term limit.
I support a term limit of 18 years for Congressmen and Senators. 6 terms im the House or 3 terms in the the Senate or some combination thereof is enough!
Based on the last few decades of William O. Douglas on the court, an 18 year term limit for S.C. Justices makes sense to me.
I agree that Justice Douglas served beyond his capacity especially in the final couple of years on the Court. But retiring him after 18 years would have meant his retirement in 1957. Hugo Black would have been retired in 1955. Eisenhower would have replaced both. While Eisenhower’s appointments were not consistently conservative, one or two additional Potter Stewarts would have made Miranda impossible. Two or more Harlans make Baker v. Carr 4-4. Without just Justice Douglas, Griswald v. Connecticut may not have provided the foundation for Roe. Many Justices have done memorable work on the Court after their 18th year.
But the current push is not inspired by the inability of the Chief Justice and Justices Thomas and Alito to do their work. Rather, it is because Mr. Biden doesn’t like the work they produce.
Some trolls troll their opposition.
Some troll their supporters.
The true politicians troll both.
It is a tale
Told by a puppet, full of sound and game theory,
Signifying nothing.
Biden’s point in doing this now is that, when the proposed reforms fail – as they must, because they require a Constitutional amendment, as you note – the Dems will then push court-packing, which does not requirement an amendment. (Congress controls the number of Justices). The Dems will say, “See? We tried to reform the Court without expanding it, and it didn’t work. We need to expand the Court.” Sen. Warren will go on CNN and claim that court-packing is necessary to Save Democracy, while making conspiratorial claims about Justices intentionally trying to undermine the Court, and the hosts will nod along. (Has anyone ever challenged Warren on anything she says? I have not, not even at the 2020 primary debates.) Pray for continued divided government and gridlock which saves us from the extremists on both sides.
I really didn’t think that I had anything to contribute to this question, but you’ve sparked my interest. While this may be far-fetched, it’s a very interesting idea.
I think you’re on to something there. But Schumer would have to abolish the filibuster because I don’t see any path to 60 votes and I’m not entirely sure he can get to 50 votes as I think (hope maybe?) that some of the more conservative democrats like Manchin and Tester would find Court packing “a bridge too far.” And of course it has no chance in the House this session.
If mine host permits:
https://www.youtube.com/watch?v=CHqR1Rql5r8
Seems to be that kind of season.
A day late but since no one else has responded (perhaps too obvious); 2 comments off the top of my head on comments.
1) No, Trump would not get to appoint 4 judges. Each President would get two per term (that is the reason for the 18 year term). There would have to be a phase in period and some procedure if a judge leaves before the term expires. A bigger problem would be if the Senate refuses to confirm any nominee for a President.
2) The belief that an idea should be rejected because although it benefits one party now, it might benefit the other party later, is symptomatic of a major problem with our government. Both parties seem primarily interested in what will benefit them and not what will benefit the country.