If media reports are true, President Biden will soon propose a package of judicial reforms for Congress to enact. this Washington post Summarizing their possible contents:
President Joe Biden is finalizing plans to approve major changes to the Supreme Court in the coming weeks, including legislative proposals to create term limits for judges and an enforceable ethics code, according to two people familiar with the plans.
He is also considering whether to ask for a constitutional amendment to remove broad immunity from the president and other constitutional office holders, people familiar with the matter said.
In terms of policy merits, these are actually good ideas, but it’s important to note that there may be problems in the details. However, the term limits proposal cannot be implemented through ordinary legislation, but would require a constitutional amendment.
Term limits for Supreme Court justices, which typically take the form of 18-year terms, is an idea that has widespread support among experts and the public. It brings together many legal scholars from across the political spectrum, such as Sanford Levinson on the left and Steve Calabresi on the right. Term limits have attracted broader support than any other proposal considered by Biden’s 2021 Supreme Court reform commission. A 2022 AP/NORC poll found that 67% of the public supported the idea, including 82% of Democrats and 57% of Republicans. I myself support 18-year terms for justices, although I caution that the idea is unlikely to end the ideological and partisan conflicts on the Supreme Court.
The problem with Biden’s potential proposal is that he apparently wants Congress to implement the idea through statute rather than a constitutional amendment. Like most other legal scholars, I think this is wrong on a constitutional issue. If the president and Congress succeed in enacting the bill and the courts don’t strike it down as unconstitutional, it would also set a dangerous precedent. I explained why in a 2020 article:
If Congress can impose 18-year term limits, they can also impose shorter term limits, such as five-year or two-year limits. This would make it easy for whatever party controls Congress and the White House to get rid of judges they don’t like ruling and replace them with jurists who are more supportive of them. If Congress can impose term limits on all judges, they can also selectively impose term limits on specific judges it particularly wants to get rid of, while leaving others alone. For example, if a Democratic Congress wanted to get rid of Gorsuch, Kavanaugh, or Amy Coney Barrett… they could pass a law that would impose extraordinary sanctions on judges appointed in 2017, 2018, and 2020, respectively. Short tenure. Republicans could use similar tactics to target liberal judges who might otherwise become a thorn in their side.
Some proposals put forward by Democrats would create a rotation system that would limit the roles of longer-serving justices rather than removing them from the court entirely. These ideas suffer from many of the same constitutional flaws as more traditional statutory term limits. They also pose similar threats to judicial independence. Legally speaking, the point is that the Constitution provides for the “office” of a “Supreme Court” judge. As Michael Ramsey noted in his criticism of the early rotation proposal:
To hold the “position” of a Supreme Court judge necessarily means to act in a judicial capacity as a Supreme Court judge, not just to have a title and occasionally fill a vacancy. This constitutionally defined office cannot be redefined by statutory law as one in which one temporarily acts in a judicial capacity as a member of the Supreme Court and then does other things during the term. (Otherwise, Congress could define the “office” of a Supreme Court justice as serving as a judge for 5 years and then serving as a dog catcher in Alaska’s Eastern Interior for the remainder of the time)
Ultimately, if enacted, statutory term limits could be challenged in court, where a judge could rule against them.
Unlike term limits, Congress has broad (though not unlimited) power to set ethics rules for judges. Justice Alito erred in holding that the Legislature had no power to regulate the courts. As a matter of policy, I think it would be desirable to limit the scope of gifts that judges can receive from private parties, thereby prohibiting very large gifts of the sort received by Judge Thomas et al. I think the Chancery’s Voluntary Code of Ethics, adopted last year, already prohibits such gifts. But there’s no harm in enforcing such rules, and there may be some benefits.
I have little sympathy for the argument that judges need to be able to accept large gifts to supplement their allegedly inadequate salaries. Currently, the chief justice’s annual salary is $312,200 and the associate justice’s annual salary is $298,500. Even in admittedly expensive Washington, D.C. (the costs of which I’m familiar with, as I live there myself), this seems enough to make a good living.
Yes, I know partners at big law firms make much more than that. But the power and prestige of being a Supreme Court justice provide extremely valuable non-pecuniary income. Plus, judges don’t have to work the long hours that most elite private-sector lawyers do, and they can take longer summer vacations if they choose.
At the same time, there is no evidence that any modern judge has ever used gifts to change a vote or opinion. Therefore, anyone expecting such reforms to change the court’s jurisprudence is likely to be disappointed.
In addition to gift restrictions, an ethics code may include avoidance rules and perhaps other provisions. I have to look at the details before making any judgments about them.
Finally, I strongly favor a constitutional amendment that would strip the president and other high-ranking officials of immunity from criminal prosecution for actions they take while in office. recent decisions of the supreme court Trump v. United States Granting the president such immunity goes too far, although the exact scope of what they grant the president is often vague. All in all, I think the danger of the president and other senior officials abusing their power and committing crimes with impunity is much greater than the problem of over-prosecution by partisan enemies. Furthermore, the latter could be limited by granting the president statutory immunity from various minor charges (which I hope any constitutional amendment would still allow the Legislature to do).
Obviously, like almost any meaningful amendment, the likelihood of enactment is extremely low. It seems to me that any amendment limiting immunity is unlikely to gain the necessary two-thirds support in both houses of Congress, plus the approval of three-fourths of the states.
The term limits amendment has a better chance of passing because of broad bipartisan support for the idea among experts and the public. But it’s still an uphill battle. Additionally, drafters need to find ways to address the issue of how to deal with sitting judges. Exempting them would likely anger the political left. Failure to do so risks losing support from the right.
The president’s motivations for proposing these ideas now may be at least partly political. The Supreme Court has become deeply unpopular. Currently, in 538 recent polls, the support rate for the bill is only about 36%, and the disapproval rate is about 56%. Targeting the Supreme Court could be good politics and could help shore up Biden’s flagging campaign. Furthermore, if reports of the proposal are correct, Biden would focus on generally popular ideas, such as term limits, while avoiding the less popular (and very dangerous) idea of court crowding.
As noted above, purely statutory term limits would set a dangerous precedent. But swing voters—most of whom don’t follow policy issues closely and know little about policy issues—may not understand this.
When Biden does make these proposals, we’ll know more about how good or bad they are and whether they have any political impact. stay tuned!
