Susan Shelley: Biden’s attack on SCOTUS

Just three months after he was sworn into office in 2021, President Joe Biden disposed of a troublesome campaign issue using the oldest trick in the book.

Progressives wanted to overhaul the U.S. Supreme Court to undo the influence of former President Trump’s three appointees. Biden signed an executive order creating a commission to study the issue and report back.

The commission reported back in December 2021, and Biden sent the report straight to the shelf to collect dust.

But just recently, in his Oval Office address stating that he is stepping down from the presidential race, Biden brought up the issue of reforming the Supreme Court. Then he (or somebody) wrote an op-ed in the Washington Post in which he thanked the 2021 commission for its “insightful analysis” leading to some of his new proposals.

The proposals have a snowball’s chance in Death Valley of ever becoming reality.

First, Biden called for a constitutional amendment to override the Supreme Court’s recent decision in Trump v. United States, in which the court held that former presidents have absolute immunity from criminal prosecution for their official acts in core areas of presidential power, as well as a presumption of immunity for other official acts. Biden said the Constitution now needs a “No Man is Above the Law Amendment.” He completely ignored the Supreme Court’s careful distinctions between official and unofficial acts as well as its analysis of the separation of powers. The president, the court said, is the only individual who is a branch of government.

Biden’s second proposal would end lifetime appointments for Supreme Court justices. Instead, they would have 18-year term limits and the president would appoint a new justice every two years. Biden wrote that this plan “would make timing for court nominations more predictable and less arbitrary” and would “reduce the chance that any single presidency radically alters the makeup of the court for generations to come.”

Third, Biden would impose a binding “code of conduct” for Supreme Court justices, presumably enforced by the executive branch, to replace the court’s self-governance on matters of ethics and recusal.

The first and third proposals would disrupt the constitutional structure that is built on the separation of powers. Any sitting president could instruct his or her appointees to open investigations, even on baseless charges, into a former president or a Supreme Court justice. Checks and balances would be replaced by an endless cycle of legal harassment and political retaliation.

The second proposal, term limits, would damage the independence of the judiciary. Lifetime appointments insulate the court from the shifting political winds. Supreme Court justices are subject to impeachment, but other than that, they are not accountable to the political branches and they are not put in the position of having to think about getting their next job when they decide important cases.

This isn’t the first time that people who don’t like the court’s decisions have tried to “reform” the judicial branch to get their desired outcome. After the historic Brown v. Board of Education decision ordered the desegregation of schools, a stack of proposed constitutional amendments were presented to Congress by various state legislatures. One would have made the U.S. Senate the final appellate court with the power to review Supreme Court decisions “where questions of the powers reserved to the States, or the people, are either directly or indirectly involved and decided, and a State is a party or anywise interested in such question.” Another proposed amendment would have set term limits for the justices and changed how they were selected. A third would have required that any decision weakening states’ rights must receive the approval of three-quarters of the states.

There were more, but you get the idea. None of the amendments proposed after the Brown decision actually made it into the Constitution.

The Supreme Court’s landmark desegregation decisions were a departure from legal precedents that had upheld racially segregated schools for many decades and in many places, including California (Ward v. Flood, 1874). It’s a historical fact that segregation was widely supported at the time. If the Biden “reforms” had been in effect in the 1950s, the justices might have stayed with what was popular.

Today’s “reformers” are angry at the Supreme Court for overturning Roe v. Wade and affirmative action, reversing longstanding precedents. But as we’ve just seen, sometimes the precedents are wrong. Popularity is not the standard. “Reforming” the judiciary to make it more responsive to political pressure is a terrible idea.

Of course, terrible ideas have their uses in politics. Outgoing President Biden’s last-minute attempt to smear the Supreme Court with his “reform” proposals seems tailored to fit fundraising emails and TV commercials for House and Senate candidates, as well as for his hand-picked successor, Kamala Harris.

“We are a nation of laws — not of kings or dictators,” Biden’s op-ed declared.

It’s our independent judiciary that keeps us that way. We should protect it.

Write Susan@SusanShelley.com and follow her on Twitter @Susan_Shelley