If media reports are correct, President Biden will soon submit a judicial reform bill to Congress. The Washington Post Summarize their contents:
President Biden The Supreme Court is finalizing plans to approve major reforms to the court in the coming weeks, including proposing legislation that would impose term limits on justices and establish an enforceable ethics code, according to two people briefed on the plans.
The people, who asked not to be identified because the deliberations are private, said Trump is also considering whether to seek a constitutional amendment to eliminate broad immunity for the president and other constitutional offices.
On their policy merits, these are all indeed good ideas, with the important caveat that the devil may be in the details. However, term limit proposals cannot be implemented through ordinary legislation, and would require a constitutional amendment.
Term limits for Supreme Court justices (usually 18-year terms) are an idea that has widespread support among both experts and the general public. The idea unites many legal scholars across the political spectrum, including: Sanford Levinson On the left Steve Calabresi Term limits garnered broader support than any other proposal considered by President Biden’s 2021 Supreme Court Reform Commission. 2022 AP/NORC Poll Polls have found that 67 percent of Americans support this idea, including 82 percent of Democrats and 57 percent of Republicans. I personally support limiting justices to 18 years, but I have warned that this idea would not end the ideological and partisan divide over the Supreme Court.
The problem with Biden’s proposal is that he appears to want Congress to enact it through law, not through a constitutional amendment. Like most other legal scholars, I think that’s constitutionally wrong. If the President and Congress succeed in enacting it and the courts don’t strike it down as unconstitutional, it would set a dangerous precedent. I explained why in a 2020 post.
If Congress can impose 18-year term limits, it can also impose shorter term limits, such as 5 or 2 years. This would make it easier for the party that controls both Congress and the White House to remove judges whose rulings it doesn’t like and replace them with more cooperative judges. Also, if Congress can impose term limits on all judges, it can selectively impose term limits on certain judges it specifically wants to remove and leave others untouched. For example, if a Democratic Congress wants to remove Gorsuch, Kavanaugh, Amy Coney Barrett… they can pass laws that make the terms of judges appointed in 2017, 2018, and 2020 very short, respectively. Republicans can use similar tactics to target liberal judges who might otherwise be a pain for them.
Several Democratic proposals would create a kind of rotational system that would limit the role of long-serving justices, without removing them from the Supreme Court entirely. These proposals suffer from many of the same constitutional flaws as traditional statutory term limits, and pose similar threats to judicial independence. The key legal point is that the Constitution provides for the “seat” of a “Supreme Court” justice to be filled. As Michael Ramsey has pointed out, Criticism Previous rotation suggestions:
By necessity, holding the “office” of a Supreme Court justice means acting in a judicial capacity as a member of the Supreme Court, not merely holding the title and occasionally serving as a substitute. The office, as defined in the Constitution, cannot be redefined by statute as acting in a judicial capacity as a member of the Supreme Court for a time and then doing something else for the rest of one’s term. (Otherwise, Congress would define the “office” of a Supreme Court justice as serving five years as a judge and then working the rest of the time as a dog catcher in the eastern outback of Alaska.)
Ultimately, if statutory term limits were enacted, they would be challenged in court, and justices would likely rule against them.
Unlike with term limits, Congress has broad (though not unlimited) power to enact ethical rules for judges. Justice Alito was wrong to suggest that Congress has no power to regulate the Supreme Court. As a matter of policy, I think it would be desirable to limit the range of gifts that justices can accept from private individuals, thereby prohibiting the large gifts that Justice Thomas and other justices have received. Got itI believe these kinds of gifts are already prohibited by the judges’ voluntary code of ethics adopted last year, but I think there would be no harm, and in fact some benefit, from making such a rule mandatory.
I have little sympathy for the argument that judges should be able to receive large donations to make up for their inadequate salaries.The annual salary for a judge is $312,200, while for an associate judge it is $298,500.While the Washington DC area is admittedly expensive (I live there myself, so I know how expensive it is), it seems like it would be more than enough to live comfortably.
Yes, I know that partners at big law firms make much more than this, but the power and prestige of being a Supreme Court justice brings invaluable non-monetary income. Plus, judges don’t have to work as many hours as most elite private practice attorneys and can take much longer summer vacations if they want.
At the same time, there is no evidence that contemporary justices have changed their votes or opinions in exchange for gifts, so those hoping that this kind of reform would change Supreme Court precedent are likely to be disappointed.
In addition to gift restrictions, the Code of Ethics may also contain avoidance and other provisions, which you should review in detail before making any decisions.
Finally, I am very much in favor of a constitutional amendment to strip the president and other high-ranking officials of immunity from criminal prosecution for acts committed while in office. Trump vs. the United States Granting such immunity to the President would be an overreach, but the precise scope of the immunity given to the President is often vague. Overall, I believe the dangers of granting immunity to the President and other high-ranking officials for criminal abuse of power are far greater than the problem of excessive prosecution by partisan opponents, the latter of which can be curbed by granting the President statutory immunity for a variety of minor crimes (which I expect any Constitutional amendment would allow Congress to do).
Needless to say, like almost all meaningful amendments, the chances of this amendment passing are extremely slim. It seems to me extremely unlikely that an amendment limiting immunity would receive the necessary two-thirds support in both houses of Congress and approval by three-quarters of the states.
The term limits amendment has broad bipartisan support from both experts and the public, so it is likely to pass. But it will still be an uphill battle. Moreover, the drafters need to find a way to address the issue of how to treat sitting judges. Excluding them is likely to anger the political left. Not doing so risks losing support from the right.
The president’s motivation for putting forward these ideas now is likely at least partly political: The Supreme Court is deeply unpopular; currently, its approval rating is just 36%. Recent poll average: 538The majority of voters opposed the Supreme Court, at 56%. Targeting the Supreme Court could be good political ploy and could boost Biden’s fading campaign. Moreover, if reports about the proposals are correct, Biden could be focusing on generally popular ideas, such as term limits, instead of less popular (and Very dangerous) The idea of ​​adding more courts.
As noted above, purely statutory term limits would set a dangerous precedent, but swing voters (most of whom do not follow policy issues closely and know little about them) may not understand that.
Once Biden actually introduces these proposals, we’ll know more about whether they are good or bad and what political ramifications they may have. Stay tuned!
