Biden Puts Forth SCOTUS Reform

President Biden referenced his support for SCOTUS reform in his speech concerning his stepping down from the presidential race. [A historical choice many now generally accept as "well sure."]  He argued it is "critical for our democracy." Protecting our democracy (including after 1/6) is a major theme. 

We now have "President Biden Announces Bold Plan to Reform the Supreme Court and Ensure No President Is Above the Law," which also was a Washington Post op-ed. The Republicans found the whole thing offensive:

“It is telling that Democrats want to change the system that has guided our nation since its founding simply because they disagree with some of the Court’s recent decisions," [Mike Johnson] said in a statement.

We should not overlook the broad messaging to pessimistically complain about the possibilities of specific reforms. Biden's institutionalist values underline the shift in his tone. 

Biden declared the Supreme Court "gutted" civil rights protections (especially abortion rights), had ethical problems that led people to "question [their] fairness and independence," and questioned the principle that "no one is above the law." 

He put forth three proposals. First, a "No One is Above the Law" amendment to address the Trump immunity ruling. Some Democrats have signed on to a specific proposed amendment. Nonetheless, Biden correctly only spoke with broad brushes.  

He also "supports a system in which the President would appoint a Justice every two years to spend eighteen years in active service on the Supreme Court." Biden does not specify if this requires an amendment. This bill has some broad bipartisan support and reflects worldwide practice. (Some places do not have term limits but have a retirement age of about 70.)  

I think (at the very least) on the SCOTUS level it will. I'm open to discussion on the point. It also will likely not retroactively apply to current justices. Biden referenced the Presidential Commission on the Supreme Court, which discussed this issue. 

Art. III states federal judges should hold their offices during good behavior. Two things are notable. 

First, it is far from clear that impeachment is the sole way to remove judges for violating good behavior. If Congress defines "bad behavior" as criminal conviction for certain serious felonies, perhaps automatic removal is possible.  

Second, at least technically, the text does not speak of "life tenure."  That has been the general assumption. But, a ten-year term of "office" -- removal only by bad behavior -- is literally possible. 

Third, Biden supports a binding code of conduct for the Supreme Court.  Senate Democrats already have rallied around this standard. It also should be possible to do so -- devil in the details somewhat -- without a constitutional amendment. Passage long-term is conceivable.  

Vice President Harris has agreed with these proposals. The response that these proposals are "useless" is overly pessimistic. There is value in making SCOTUS reform a significant part of the Democratic platform. 

There is also an overall criticism and lack of trust in the Supreme Court. That is part of the message. Trump benefited from many voters believing control of the courts (conservative style) was a basic issue in the 2016 elections. SCOTUS is on the ballot now. 

Victoria Nourse (who worked with Senator Biden) has pushed for statutory reform, including regarding injunctions and other matters legal observers have flagged as troubling. She worked with Biden to create policy so her focus is unsurprising. I don't think it is an either/or as much as some of the remarks suggest. 

(I think court expansion is warranted because of an extended unbalancing of the Supreme Court. At the very least, the push for expansion should be part of the conversation, in part to help move the "Overton Window" of what a "compromise" would entail.)  

Democrats have announced a desire to protect abortion rights. Other bills can address administrative agencies (overturning of Chevron deference) and other issues. I agree that Democrats should think big. 

President Biden, who is not going to be in office after January, is not putting forth the absolute ceiling of possibility here. Once you have a camel's nose under the tent, there will be more chance of change. 

Federal Prison Oversight Act

The Senate passed legislation Wednesday to overhaul oversight and bring greater transparency to the crisis-plagued federal Bureau of Prisons following reporting from The Associated Press that exposed systemic corruption in the federal prison system and increased congressional scrutiny.

I check the White House website to see new statements, presidential actions, and legislation. We do not have much legislation these days. 

Sen. Ossoff led the effort here. State civil rights leaders praised the passage of the law which expands oversight of federal prisons, including the establishment of an ombudsman to routinely investigate. The bill had wide legislative support.

Anything with such broad support (unanimous support in the Senate) is likely to be of limited value. One discussion did not go into too many details.  But, hopefully, sunlight will be a good disinfectant.  

The legislation shows the possibility of statutory reforms of the Supreme Court. For instance, qualified immunity -- denial of even letting judges and juries decide if certain wrongdoing warrants civil penalty -- can be addressed by statutory reforms.  

No one is above the law, right? 

ETA: Steve Vladeck unpaywalled his response to President Biden's proposals (his paywalled material annoyingly repeatedly covers important topics) to emphasize how disappointed he is. I respect him enough to comment about someone wrong on the Internet. I find his response overblown.

First, he says the reforms have no chance of being adopted. The ethics reforms do have a chance. The others are more longshots but worth proposing. Term limits are a sensible policy. You have to start the ball rolling there somehow. 

He argues an enforceable proposal is constitutionally untenable. I don't think so. Kagan seems not to think so. Likewise, he repeats his inspector general proposal. Why isn't that a way to do ethics?

Next, Vladeck says there is no chance for the immunity amendment to pass. He asks why not some other amendments like to overturn the partisan gerrymandering decision. Because the rule of law is so basic and unlike that decision, Congress cannot pass a voting rights law to address it? Sigh. 

He also is upset President Biden didn't push reforms back with the presidential commission handed down its report in 2021. I wanted more too. I repeatedly pushed others to take advantage of it. They did not. 

It is not just "President Biden." He finally does something, and what happens? It is attacked.

Finally, a lot was happening in 2021-2. There was not the same tipping point to address SCOTUS reform on top of that. Anyway, if "it's too late" is a problem, even the best set of proposals would be inadequate. 

He is also upset that there is no general theme to the reforms other than "SCOTUS is bad." In his speech, Biden emphasized SCOTUS reform is necessary for democracy. The rule of law (immunity) is necessary for democracy. An ethical SCOTUS is necessary for democracy. More consistent turnover with nominations and confirmation by elected officials is necessary for democracy.  

Finally, he says the reforms are good targets for Republicans. Seriously? Each one of them is popular. He complains that Republicans can target them as partisan. They do that already every time! 

True reform will require Democrats in power. It is appropriately an issue for elections. Once you do that, the other side will cry "partisan!" There is no "instead" here. Look at his damn list! When Democrats wanted more oversight, Republicans cried foul. The inspector general proposal is an ethics measure!

Finally, it makes sense to lead with three popular proposals. Congressional oversight can be done without legislation. Will "budget accountability" (I don't even know exactly what that means) not result in cries of interference of judicial independence? 

Docket reforms are technical. Why would that be something Biden would lead with? Also, in specific cases, they can be criticized too. 

Finally, once court reform is on the table, Congress can deal with that too. I still am not sure why the three proposals make something like that less as compared to more likely to pass. Unless, you have defeatist analyses like this, perhaps. 

My response here is not that his criticisms (too late! not enough!) lack some force in certain cases. Nonetheless, they are also overblown, partially misplaced, and overly defeatist. 

His head on the table .gif is how I feel about his response.