With Calls for a Constitutional Amendment to Rein in SCOTUS, Biden Isn’t Planning on Phoning in the Next Six Months
President Biden isn’t going for the small fish as he winds down his presidency. He is setting up the next president, presumably Vice President Kamala Harris, to preside over a fairer modern judiciary.
President Joe Biden doesn’t plan on spending his remaining six months in office on superficial decisions.
He has instead decided to take some of the most consequential and controversial actions a president can by reshaping what has become one of the most corrupt branches of government — the United States Supreme Court (SCOTUS).
In an op-ed piece in The Washington Post on Monday, President Biden articulated his intention to urge Congress to pass a “No One Is Above the Law” constitutional amendment--no easy feat--limiting presidential immunity after the almighty unelected lifetime-appointed black-robed monarchs on the nation’s highest court declared at the end of June that US presidents are absolutely immune from criminal prosecution for “official acts”.
Biden wrote:
This nation was founded on a simple yet profound principle: No one is above the law. Not the president of the United States. Not a justice on the Supreme Court of the United States. No one.
But the Supreme Court’s 6–3 decision on July 1 to grant presidents broad immunity from prosecution for crimes they commit in office means there are virtually no limits on what a president can do. The only limits will be those that are self-imposed by the person occupying the Oval Office,” he continued. “If a future president incites a violent mob to storm the Capitol and stop the peaceful transfer of power — like we saw on Jan. 6, 2021 — there may be no legal consequences. And that’s only the beginning.
The president’s proposal to Congress calls for legislation every two years allowing future presidents to appoint a justice to an 18-year term, instead of the lifetime appointments “during good behavior” the Constitution currently permits.
A “binding, enforceable conduct and ethics rules” is part this reform, requiring justices to disclose gifts, refrain from political activity, and recuse themselves when they or their spouses face conflicts of interest.
Justice Elena Kagan, for one, in favor of this finally being enacted. She called last week for the court to add an enforcement mechanism to the ethics code introduced in 2023.
In an interview with BET earlier this month, 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 White 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.
A constitutional amendment is a heavy lift, requiring support from two-thirds from both the House of Representatives and the Senate, or passed at a constitutional convention two-thirds of the states must support. Both require three-fourths of state legislatures to ratify.
Facing this, while the amendment Biden is calling on Congress to take up may not pass, proposing it puts it out into the public dialog so it becomes a wider political issue on which candidates can run. Rep. Alexandria Ocasio-Cortez demonstrated this when she introduced articles of impeachment against Justices Samuel Alito and Clarence Thomas.
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 also argue imposing term limits and holding SCOTUS justices to a code of ethics as all other justices across the nation are 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.
President Biden isn’t going for the small fish as he winds down his presidency. He is setting up the next president, presumably Vice President Kamala Harris, to preside over a fairer modern judiciary.
Hopefully we won’t screw it up by electing the convicted felon in November.