Biden Considering Expanding the Supreme Court is Long Overdue

Now that the SCOTUS has decided presidents are kings, Biden can leap-frog the congressional process and just expand the court and impose an ethics code by fiat. According to the SCOTUS, he can do it .

Photo by Tingey Injury Law Firm on Unsplash

The Constitution states federal judges shall enjoy lifetime appointments “during good behavior.” They, like all government officials, are subjected to the impeachment process, as Rep. Alexandria Ocasio-Cortez demonstrated when she introduced articles of impeachment last week against Justices Samuel Alito and Clarence Thomas. 

But impeachment of justices is a high bar to achieve. In our history, 15 judges have been impeached. Of those, eight were convicted in the Senate and removed; three resigned before their impeachment processes completed; four were acquitted, one of which, Samuel Chase, was the only Supreme Court Justice to ever face impeachment.

Impeachment is a serious and important measure in place to hold individuals’ behavior to account. It does not address systemic problems, however. Therefore, after a slew of alarmingly dystopic decisions from the almighty un-elected black-robed monarchs on the United States Supreme Court (SCOTUS), President Joe Biden seeks to do something progressive and long overdue: impose term limits and enforce a new ethics code. 

The Washington Post reported:

President Biden is finalizing plans to endorse major changes to the Supreme Court in the coming weeks, including proposals for legislation to establish term limits for the justices and an enforceable ethics code, according to two people briefed on the plans.

He is also weighing whether to call for a constitutional amendment to eliminate broad immunity for presidents and other constitutional officeholders, the people said, speaking on the condition of anonymity to discuss private deliberations.

According to a recent poll from Data for Progress, almost 75% of cross-party voters support ending lifetime SCOTUS appointments : 78 percent among Democrats, 59 percent among independents, and 51 percent among republicans. 

A 2022 Associated Press-NORC Center for Public Affairs Research survey found 67 percent of Americans support term limits, including 82 percent of among Democrats and 57 percent of republicans.

Last September, House Democrats introduced “the Supreme Court Tenure Establishment and Retirement Modernization” (TERM) Act requiring 18-year limits.

Founder and president of progressive advocacy group Stand Up America stated:

The Supreme Court should be the gold standard for judicial ethics, but right now, nothing could be further from the truth. That’s why a supermajority of Americans support legislation to enact Supreme Court term limits and a binding code of ethics. It is time for our leaders to listen to the American people and take action to address the growing crisis on our nation’s highest court. We urge President Biden to support the Supreme Court Ethics, Recusal, and Transparency Act and the TERM Act, which would establish term limits for current and future justices.

Some argue, though, imposing term limits and holding SCOTUS justices to a code of ethics as all other justices across the nation are is ineffective without expanding the court.

The Nation justice correspondent Elie Mystal explained:

The only way to get term limits is to appoint a majority of justices who think term limits are constitutional. And right now, I don’t even know if there are three justices who think they’re constitutional, much less the necessary five.

So, again, the constitutional way to bring the Supreme Court to heel is to expand it, then pass your ethics bills and term limit bills, which will then be upheld by the newly expanded court.

Georgia State University College of Law constitutional law professor, Anthony Michael Kreis, added:

I think Supreme Court term limits can be established by statute. But, I’m not confident the Court will just say, “Yeah that’s okay.” Another (and additional) route Congress could take is to offer very generous retirement terms contingent upon immediate retirement after 18 years.

This being a presidential election year, reforming the court is a particularly timely matter. 

In an interview with BET on Tuesday, Biden explained that in the upcoming four years “there are probably going to be two more appointments”. About the possibility of Donald Trump winning the Whit House and having the power to add two more appointments to the three he added during his previous term, “Just imagine if he has two more appointments, what that means.”

It means we risk getting more draconian, undemocratic decisions such as the overturning of the Roe v. Wade decision; declaring that US presidents are immune from criminal prosecution for “official acts”; overturning “the Chevron deference,” the 40-year-old decision that authorized federal agencies to appropriately operate within the scope of existing legislation if that legislation does not specifically prohibit rules from being enacted; the Citizens United decision that legalized political bribery.

The list goes on. 

President Franklin Roosevelt only had to threaten to pack the court to get it to back down from blocking New Deal legislation, which it did. 

Democrats need to get this done before republicans do. It’s a double-edged sword that has the potential to invigorate or destroy democracy.

But, hey. Now that the SCOTUS has decided presidents are kings, Biden can leap-frog the congressional process and just expand the court and impose an ethics code by fiat. According to the SCOTUS, he can do it — another reason this out-of-control court needs to be regulated.