This piece was first published in our news digest, The Front Page. To get our latest scoops, investigations, and columns in your inbox every morning, Monday through Thursday, become a Free Press subscriber today:
On Monday, President Biden proposed two reforms to the Supreme Court—term limits for justices and a binding ethics code—along with a constitutional amendment to its recent presidential-immunity decision. Making his case in a Washington Post op-ed, the president claimed broad support and specifically thanked “the bipartisan Presidential Commission on the [SCOTUS] for its insightful analysis, which informed some of these proposals.”
But there’s a problem with Biden trying to use the commission to give his proposals legitimacy. Adam White, who served as a member of that commission, tells The Free Press that “nothing in our report actually recommended anything” that the president is now proposing.
Imposing term limits by statute would be unconstitutional, says White, a legal scholar for the American Enterprise Institute who was one of 34 experts who delivered a report on Supreme Court reforms to Biden in 2021.
“The Constitution explicitly guarantees that justices hold their office in good behavior, which means until impeachment or death or retirement, that’s always been understood as life tenure,” he explains.
Trying to get around this by “slicing and dicing the Supreme Court into subgroups”—granting justices 18 years of “active service,” after which they no longer participate in their ordinary duties—“opens the door to Congress playing total mischief with the court,” warns White. Biden is yet to explain the details of his proposals, but any legislation he brings to Congress is likely to be dead on arrival. In fact, House Speaker Mike Johnson said as much yesterday.
White adds that it’s “incredibly important” to have high ethical standards for justices, but “any proposal by Congress to assume for itself the power to micromanage the ability of justices to decide on their own code of ethics would be an enormous breach of the Constitution’s separation of powers.”
In other words, there’s nothing wrong with Biden’s proposals—beyond, you know, being unconstitutional.
Madeleine Kearns is an associate editor at The Free Press. Follow her on X @madeleinekearns. Read her piece “Trump Might Regret Picking J.D. Vance.”
One of the more interesting aspects of this originalist (not "conservative") Court, and probably the part the left hates the most, is that many of the more contentious reversals of existing precedent involve returning power to Congress that Congress delegated (Chevron) or overturning what amounts to judicial lawmaking (Roe v Wade). The mistake people make is thinking that these sorts of decisions amount to the Court asserting its primacy, when, in fact, it is the Court returning power to Congress and reverting to a role of Constitutional referee, rather than the 60s through 90s liberal Lawmaking Branch of Last Resort. From the point where FDR threatened to pack the Court to recent history, the Court often operated by what Justice William Brennan referred to as "The Rule of Five," meaning that the law would be whatever five justices could agree upon. And while the Court produced much through those years that was of indisputable good for the nation, it is also true that there were more than a few decisions that essentially amounted to five justices abrogating the role of Congress and creating law, in stead of interpreting it. And for the Left, having that backstop made governing a situation where they actually didn't have to compromise much, because they often got what they wanted despite opposition. Now, with that backstop gone, they have to actually PASS things and get them signed to have the results that they sought, which is the entire point of the outrage at having a Court they can no longer count on....and why they seek to change the rules.
This is honestly the thing that scares me most about Dems. Their willingness to make profound changes to the rules of the game strikes me as authoritarian, but it's cloaked in all these noble sounding platitudes. The authoritarian hand in a velvet glove.
Drunk on the righteousness of their progressive crusade, they seem ready to remove any obstacle that might impede the coming utopia. All the articles I see regarding SCOTUS rulings focus on the outcome, rarely do they get into the actual reasoning. Their outrage boils down to a rather childish outburst, "All outcomes with which I disagree are illegitimate." But, because they have such a strong base among celebrities, media, and over-educated elites, this strongly Trumpian posture ends up being much more polished, and therefore more easily marketable, even if it's just as stupid and dangerous.