President Biden’s new term Column exist Washington post made a bold argument that Congress should pass term limits and an ethics code for the Supreme Court to “restore public confidence in the judicial system” after passing a constitutional amendment to overturn recent Supreme Court rulings. Biden said the court’s “extreme” ruling and moral crisis required immediate action.
Looking at the last term of the Supreme Court, none of this was true. The court’s opinion was nuanced and largely unanimous, and there were no credible allegations of vote-buying. If Biden wants to restore confidence in the Supreme Court, he would be better off emphasizing these nuances rather than treating the court as a political talking point.
First, it’s worth a bird’s eye view of the court. This semester, the courts ruled unanimously in nearly half (46%) of cases, similar to the previous year (48%) and a significant increase from the previous year (29%). The court’s unanimous or near-unanimous opinions include hot-button cases involving former President Donald Trump’s presidential qualifications, access to the abortion drug mifepristone, the government’s ability to dissuade companies from doing business with the National Rifle Association, social media regulation and other issues. and the scope of the Second Amendment. This consensus among the justices undercuts Biden’s characterization of a rogue or extreme court.
Indeed, the Supreme Court has sometimes been divided along partisan lines — and in many cases, the justices have been deeply divided. As Biden pointed out, Trump v. United States (About Presidential Immunity) and dobbs v. jackson (about abortion) Two such cases are represented. But just because these views are divisive, that doesn’t make them radical.
For example, Biden accused the court of “putting very few limits on the president’s conduct” in immunity cases, but the court retained ample scope for liability for the president’s conduct. All nine justices agreed the president had absolutely no power Immunity for Unofficial Acts. While the majority ruled that absolute immunity applies to core official conduct, it emphasized that non-core obligations are simply Presumptively immunity.
Reasonable people may differ on whether courts have made it too difficult to rebut this presumption. But to make such a decision, we have to see how the standard works in practice. Trump’s case, for example, will now return to district courts, which will decide what conduct is official or unofficial, core or noncore, and whether the special counsel can override any applicable presumption of immunity. At this premature stage, it makes no sense to say, as Biden does, that the president’s only limits are “self-imposed.”
Biden also criticized the court for “overturning[ing] Resolved legal precedents” e.g. Roe v. Wade. But this is criticism without substance. Precedent is not an end in itself; The prior case shall stand if it is correct and reasonable, and shall fail if it is incorrect and reasonable. Some of the most important decisions in Supreme Court history “overturned established precedent,” including Brown v. Board of Education (overturning the principle of separate but equal) and gideon v. wainwright (Expanding the right to counsel for felony defendants in state courts). Overturning precedent is part of a Supreme Court justice’s job. Saying a judge dismissed a previous case makes no sense without context.
Biden’s ethics charges also lack substance. While many have expressed displeasure over Justice Clarence Thomas’s friendship with businessman Harlan Crow, no one, including Biden, has pointed to any specific instances in which the justice allegedly traded his votes for gift from his wealthy friends (who ignored Thomas’s personal convictions in voting against Crowe in the abortion case). This is not surprising. Thomas is widely regarded as one of the Supreme Court’s most consistent justices, often writing separate opinions explaining his unique viewpoints. Given that his views are so consistent, transparent and well-known, it would be especially difficult for him to give them up in exchange for a chance to fly on a private jet. If anything, bribery is more likely to happen when decision-making is opaque—as is the case when the legislative and executive branches take place behind closed doors.
In at least some respects, the court has shown more restraint than in previous years. It is taking on fewer cases than ever (just 59 this year compared with 82 a decade ago), is looking for reasons to sidestep tough questions, and is increasingly using judge-written legal principles to rule against plaintiffs There is no right to sue, or the plaintiff has no right to sue. For example, in the case involving the January 6 defendant, Judge Ketanji Brown Jackson voted with the “conservative” justices to overturn the conviction, while Judge Amy Coney Barrett voted with the “liberal” justices to uphold the conviction.
All in all, the Supreme Court is not entirely radically conservative. This term, court observers have actually observed strong divisions among Republican-appointed justices. If Biden cares about increasing public confidence in the judiciary, he would be wise to emphasize this nuance.
