A few things in life are certain: death, taxes, and the Left trying to control the Supreme Court.
From demanding the unnecessary addition of more seats or limiting the justices’ terms, relentless propaganda that certain justices and their decisions are “corrupt,” creating fake ethical “scandals,” openly threatening individual justices, and more, the Left wants the court under their thumb.
That’s old news. The only new thing, if you can really call it that, is that President Joe Biden, according to news reports, will soon endorse a few ideas that have been around for years.
Biden says he now supports limiting Supreme Court justices’ terms and imposing an “enforceable” ethics code.
Remember when he appointed a commission in 2021 to explore Supreme Court “reform” ideas like these? Does he want us to think that, after three years of silence, it’s just a coincidence that this announcement comes on the heels of his June 27 implosion during his debate with former President Donald Trump?
This is nothing more than classic misdirection.
Biden has not been able to shake even his own party’s questioning his ability to lead the country. His interviews with ABC’s George Stephanopoulos on July 5 and NBC’s Lester Holt on Monday did nothing to calm the chaos. And so, we see the bizarre spectacle of an incumbent president running for reelection wanting people to focus on anyone else.
What about those “reform” ideas that Biden now says he supports? How long a justice serves has never been the problem. It’s what a justice does once appointed that matters.
As such, Supreme Court term limits are a solution in search of a problem.
Though a few scholars think Congress can impose term limits by statute, the better argument is that it requires a constitutional amendment.
America’s Founders obviously knew how to limit the length of terms: They did it for the president, senators, and House members. They didn’t do it for federal judges, allowing them to serve during “good behavior”—that is, until removed by impeachment.
Unlimited terms for Supreme Court justices were one of two deliberate steps to address the political manipulation of the judiciary that, the Declaration of Independence says, was one of the reasons we broke from Great Britain.
It’s unlikely that such a foundational feature of the constitutional design could be changed on a legislative whim.
The main term-limit proposal would eventually have presidents appointing a Supreme Court justice every two years.
Do we really want to see the kind of disgraceful disparagement of Supreme Court nominees that we’ve seen in recent years much more often? That kind of treatment is certain to continue since its cause—the kind of justice being appointed, not how long that justice would serve—would remain.
As to an ethics code, the Supreme Court has been following one for decades and, as of last fall, has one of its own. The Supreme Court is subject to the same federal laws governing financial disclosures and recusals as lower federal court judges.
That’s not good enough for the Left, because it doesn’t allow for direct manipulation of the Supreme Court. That’s why Biden and congressional Democrats want what they call an “enforceable” code.
The Supreme Court, however, was created by the Constitution—you know, the one Biden and members of Congress take an oath to support and defend—not by Congress. As a result, Congress’ authority over the Supreme Court is much weaker than over the lower federal courts that it creates.
Congress has no more authority to impose a scheme for manipulating the internal workings of the Supreme Court through such an “enforceable” code than it does to change the protection of judicial independence provided by unlimited terms.
Legislation introduced by Sen. Sheldon Whitehouse, D-R.I., S. 359, shows what an “enforceable” code looks like. It would allow anyone to file unlimited complaints of “misconduct” over virtually anything that a Supreme Court justice does.
Every complaint would have to be investigated by a group of lower federal court judges—the very same judges whose decisions the Supreme Court reviews. The bill says nothing about how those judges are supposed to discharge their own judicial duties while investigating incoming complaints.
The Left has often characterized Supreme Court decisions, or opinions by individual justices, in terms that could easily be characterized as “misconduct” in such a scheme.
That’s what Biden and the Left mean by an “enforceable” ethics code, a scheme that would allow liberal partisans to formally attack opinions written by justices they dislike not just as legally unsound, but as improper misconduct.
It’s hard to imagine a more direct assault on the judiciary as an institution and on the separation of powers.
This idea to make the Supreme Court the bogeyman by endorsing well-trodden ideas for changing the Supreme Court no doubt came from Biden’s campaign team.
The left-wing fringe of his political base has been clamoring for such things and so perhaps this serves to keep them energized for his candidacy, rather than grumbling about wanting a replacement. But how this would attract political independents who otherwise might not support him is anyone’s guess.
If Biden thinks that this move has no downside, he’s wrong. Adding to the Left’s campaign to demonize Supreme Court justices and decisions that don’t fit the Left’s politics would only further undermine the public’s understanding of how the judiciary works and its perception of the court’s legitimacy.
Claiming that justices who do not disclose information they are not required to disclose are unethical or corrupt simply misleads the public.
Then-Justice Antonin Scalia’s 1993 description of a now-discarded legal doctrine is how Biden is now treating the Supreme Court: “It is there to scare us … when we wish it to do so … . Such a docile and useful monster is worth keeping around, at least in a somnolent state; one never knows when one might need him.”
Biden may think he needs the Supreme Court to scare the voters, but he will only end up making our fellow citizens, perhaps permanently, doubt the court’s integrity and will weaken their faith in the rule of law itself.
