For a change, the focus on Monday returned to Joe Biden, the lame duck president, as he rolled out a new three-pronged Court proposal designed to overturn the recent decision providing presidents with immunity, give the Supreme Court a code of ethics, and reform how the Supreme Court is chosen by instituting a plan for term limits.
There are a few different ways to assess this proposal. While it comes from Biden, and not from Vice President Kamala Harris’s campaign, it’s certainly at least partially intended as a campaign document. As such, it focuses on three things that Democrats believe, probably with good reason, are both motivating for Democrats and widely popular among voters at large. Even if the Supreme Court didn’t have sagging popularity, it’s likely that term limits and the code of ethics would be popular; as it is, they poll very well.
Probably more important to the campaign than the specifics here is just the attempt to make the Court – including the three Justices that Donald Trump nominated – a major campaign issue. Without, that is, running on a platform of court “packing”, which tends to be a lot less popular.1 And adding presidential immunity to the mix is also a way for Democrats to focus more attention on Trump’s civil and criminal convictions and his remaining indictments.
At the same time, however, we can read this as an opening bid from Biden for reform in the context of Democratic party internal divisions over the question. In that respect, asking for 18 year term limits with staggered terms, so that presidents have a vacancy to fill every two years, is a modest proposal given the pressure from some Democrats to flat-out support adding new Justices. As usual, Biden is moving to the center of the Democratic Party, although he’s probably not there yet; if anything, as an intraparty policy position this is an attempt to restrain his party from where they appear to be heading. That said, given the Republican majority in the House, it’s not as if anything is going to happen on this while Biden is in office.
It is worth noting that Biden certainly could have advanced a more partisan proposal – and, indeed, if he was coordinating with Harris he could have given her a chance to be more moderate than him had she opposed new Justices while supporting term limits. But even had Harris wanted that dynamic, it’s likely that supporting court-packing would have been a step too far for the old Senate Judiciary Chair. It’s fairly remarkable that he was willing to support a term-limits proposal.2
On the merits?
Well, we have three separate proposals. I’m certainly for overturning the Court’s terrible presidential immunity decision, and it’s good to see a sitting president take that position. In a healthy world both parties in Congress would rapidly agree on appropriate wording and pass this unanimously. Alas, we’re not in that world, and congressional Republicans aren’t interested in choosing institutional loyalty over the whims and self-interest of their forever nominee. (While they’re at it, they also should overturn the anti-Congress decision in Loper Bright in a bipartisan vote, but I’m also not holding my breath on that one).
As far as ethics reform? I’m not specifically against it, but I don’t care much about having a binding code of ethics for the Supreme Court. The recent scandals over gifts to Justices make for good partisan fodder (and perhaps help educate Court reporters and pundits who have fooled themselves about the partisan nature of the current Supremes). But I very much doubt that Clarence Thomas or Sam Alito, who have been hard partisans all their professional lives and were nominated specifically to be partisans on the bench, would have done anything different had they never taken a dime’s worth of benefits from rich conservatives. I’m much more concerned about the day-to-day information environment these folks apparently live in, leading them to believe that the possibility of prosecuting presidents for obvious crimes they have committed is a greater threat to the republic than the crimes themselves. That’s not something that ethics rules can change.
The real core here is the term limits scheme: Eighteen year terms, staggered so that each presidential term would contain two nominations. I’ve been in the mushy middle on this, but on balance I guess I’m mildly in favor.
I say that as one who supports the basic structure of the Supreme Court, with presidential nominations, Senate confirmations, and a strong power of judicial review. I see nothing undemocratic about that basic idea.3 Yes, the Court is political, and yes, it’s not elected. But that’s okay; indirect democracy is still democracy, whether it’s authority delegated to executive branch officials or, in this case, judges.
No, the big issues here are the arbitrariness of Court openings and the time element. Jimmy Carter had no Supreme Court nominations during his single term; George H.W. Bush had two, Donald Trump three, and even Gerald Ford had one in less than half a term. Some of that had to do with strategic retirements, but not all of it. Making the nomination power equal for all presidents strikes me as reasonable.
And the time issue is important as well. You can’t have electoral democracy without at least a bit of older electorates still influencing today’s polity, including from beyond the grave; people who voted for Biden in 2020 determined today’s president, not our slightly different current electorate. So I’m okay with today’s decisions governing tomorrow…to a point. But the construction of the Court pushes that idea pretty far. Clarence Thomas was nominated by a president who was elected in 1988, and confirmed by Senators who were elected in 1990, 1988, and 1986. Not only are most of them dead and gone, but almost half of the people living in the US today aren’t even born when those elections took place.4
Biden’s scheme, which some political scientists have advocated for a while, would solve the first of those problems and reduce the second. It would also have the benefit of reducing or eliminating the odd incentives surrounding nomination and confirmation, in which the goal for each president is to find the youngest candidate who is guaranteed to deliver safely partisan results, and yet has little or no paper trail that would cause confirmation troubles.
Any term limits plan would have to be drafted carefully to prevent presidents and Senate majorities from gaming the system. But that’s already a problem with the current situation; there’s a real chance that Harris could win along with a Republican Senate majority that would refuse to consider anyone she nominated. So on balance, it’s probably a good idea — albeit one that likely has no chance of actually being enacted any time soon.
And one more way to look at all of this: It’s not so much the Democratic reaction that’s important, but the decision of the six Republican Justices to get as much as they could while they could, without worrying about the fallout. That’s not an unreasonable choice (whatever one makes of the logic in any specific decision), but enforcing an aggressive Republican policy agenda from the Federal bench while Democrats have held the presidency more often than not (and the Senate quite a bit of the time as well) made a backlash inevitable. Including, perhaps, real costs to Republican candidates this November.
No doubt Republicans will call this court-packing. It isn’t.
Another way to read this proposal? It’s at least in part a message to everyone from Biden that he’s still in office, and that he intends to be an active president through January. One of the tricky parts of the presidency is that so many things have multiple audiences and so presidents have to be careful of what their actions mean to each of those audiences, from Congress to the bureaucracy to foreign nations and on and on.
Well, more or less; as always, the malapportionment of the Senate is a problem for democracy.
Okay, I didn’t actually count how many of the Thomas-confirming Senators are still around, so the “most” might be an exaggeration. Or not.