President Biden on Monday proposed term limits and an ethics code for Supreme Court justices. Those reforms are unquestionably desirable but they have little chance of being enacted. The laser focus for Democrats and others alarmed by the direction of the court should instead be on the November election.
I say this because the potentially disastrous consequences of a Donald Trump victory — which no doubt would mean the expansion of the court’s conservative wing and more decisions that fundamentally compromise constitutional rights — are of urgent and imperative concern.
In 2021, Mr. Biden formed a bipartisan commission of lawyers and legal scholars to study and appraise possible changes to the court. It worked diligently and presented a lengthy report. Mr. Biden and most lawmakers ignored it. Now, he has rediscovered the issue.
The most important proposal by Mr. Biden is to impose term limits of 18 years for Supreme Court justices, which would allow a president to make two regular appointments in a single term. That idea makes enormous sense. Life expectancy now is much longer than it was in 1790 when the court first assembled. From then until 1970, the average tenure of a Supreme Court justice was approximately 15 years. For those appointed since 1970 who have left the bench, the average tenure was 26 years. Many of the current justices are likely to serve more than 30 years. That is too much power for too long in one person’s hands.
Lifetime tenure also leaves too much to accidents of history as to when vacancies occur. Mr. Trump appointed three justices in four years. Two of those appointments followed the deaths of sitting justices, Antonin Scalia, who died at 79 after nearly three decades on court, and Ruth Bader Ginsburg, who was 87 and had spent 27 years as a justice. Presidents Bill Clinton and Barack Obama served a combined 16 years as president, but appointed only four justices during that time. President Jimmy Carter had no opportunity to make an appointment.
The problem with term limits for Supreme Court justices, and certainly ones that would apply to the current justices, is that they would require a constitutional amendment. The Supreme Court has long said, starting with McCulloch v. Maryland in 1819 and increasingly in recent years, that history and tradition are important in interpreting the Constitution. The tradition has always been that a Supreme Court justice holds the position for life, unless the justice resigns or is impeached and removed. Article III, Section 1, makes that clear: “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour.”
Not everyone agrees with this view. One contrary theory is that Congress, by statute, could keep current members of the court as “justices” in the sense that they would retain their title and salary and could sit on courts of appeals and fill in when a justice is recused. But then they are not functioning as a justice in the way it always has been understood. They would be a Supreme Court justice in name only.
A constitutional amendment for term limits is highly unlikely. Republicans in Congress would certainly block any effort at term limits that would apply to the current justices. The process is also unwieldy and time consuming: An amendment could be proposed by two-thirds of both houses of Congress, or, if two-thirds of the states request one, by a convention called for that purpose. Ratification would then be required by three-fourths of the state legislatures or three-fourths of conventions called in each state. If term limits imposed by Congress do not apply to current justices, they will not make a difference for a very long time.
President Biden also is proposing a constitutional amendment to overturn the Supreme Court’s recent decision in Trump v. United States, which gave the president broad immunity from criminal prosecution for anything done using a constitutional power of the presidency. The decision means that there is full immunity if a president, as commander in chief, calls out the military to assassinate a political rival or if a president takes bribes for pardons or appointments. Mr. Biden is right that the Constitution should be amended to overrule this awful decision.
But, as with terms limits, it is highly unlikely that a constitutional amendment will get adopted to change this in the foreseeable future.
A final element of Mr. Biden’s proposal is ethics reform for Supreme Court justices. Such a law, which Congress has the authority to pass, would be both important and constitutional and should be done without delay. The ethics code issued by the justices last year leaves it entirely to each justice to decide whether to be disqualified in a particular case. That makes the court’s code toothless; there must be a recusal mechanism that does not leave the disqualification decision to the individual justice.
Any effort to creating an ethics code for the court would run into political problems which, at the moment, seem insurmountable. The issue of Supreme Court ethics has become a partisan issue because the most serious of the recent improprieties have involved two conservative justices: Clarence Thomas and Samuel Alito. That makes it highly unlikely that congressional Republicans would support a bill for ethics reform, even though the issue should not be partisan at all.
I agree with Mr. Biden’s proposed reforms and hope that eventually they will be adopted. But the central challenge right now is to prevent Mr. Trump’s return to office and what that could mean for the court and the rule of law, rather than the broad and more difficult struggle to change the basic rules governing one of the three branches of the federal government.
The consequences of a president’s choices for the Supreme Court are among the most enduring of any presidency. If Hillary Clinton had won in 2016 and, instead of Mr. Trump, was able to pick three justices, Roe v. Wade would not have been overruled and so many decisions of the last three years would have been different.
I expect that if Mr. Trump wins and that there is a Republican majority in the Senate, Justices Thomas and Alito will retire so they will be replaced by conservatives in their late 40s or early 50s, keeping the seats in conservative hands for decades to come. Likewise, I expect that if a Democrat wins in November and that there is a Democratic majority in the Senate, Sonia Sotomayor, who is 70 and has sat on the court for nearly 15 years, will resign.
No Supreme Court reform that has a chance of being adopted anytime soon is likely to make a difference in the court’s composition. But the presidential election will, and the focus in the months ahead should be on the enormous difference between who Mr. Trump and Kamala Harris would appoint to the high court.
The post The Election Is Crucial to the Supreme Court’s Future. Biden’s Reform Plans Are Not. appeared first on New York Times.
