President Joe Biden is treating the Constitution as a mere suggestion in calling for sweeping changes to the United States Supreme Court. For the most part, what he is proposing can only be done by amending the founding document, a process that is extraordinarily difficult, and in this instance, unnecessary.
Biden’s play on the high court is entirely political, aimed at making control of the Supreme Court a driving issue in the fall presidential campaign. Vice President Kamala Harris, the presumptive Democratic nominee now that Biden has withdrawn from the race, signed on to the proposals.
The president is asking for three measures — term limits for justices, an ethics code governing their behavior and a reversal of the court’s recent ruling granting broad immunity to former presidents.
On term limits, Biden would limit a justice’s tenure to 18 years, and would allow a sitting president to appoint a new justice every two years. The ethics code would require justices to report all gifts and refrain from all public political activity and recuse themselves from cases in which they or their spouses have conflicts of interest. As for the immunity ruling, Biden is asking Congress to begin the process of amending the Constitution to bring about its reversal.
Whether or not term limits are a good idea for justices is not the point. Article III of the Constitution specifies federal judges are to be appointed to lifetime terms. Changing that would take a constitutional amendment. That requires a two-thirds vote of both congressional chambers, as well ratification by 38 of the 50 of state Legislatures.
By design, passing an amendment is a rare and difficult feat. The Founders didn’t want the Constitution to be at the mercy of popular whims.
It’s less clear whether Congress could impose an ethics code. The Constitution says the court’s jurisdiction must be exercised under “such regulations as Congress shall make.” Whether the justices would consider that to mean lawmakers can regulate their private activities is a huge question.
More ethics at all levels of government is desirable. But Congress should take a look in the mirror first. A national ethics code that takes in the justices as well as senators and representatives would be more appealing. For example, 86% of Americans favor banning lawmakers and their families from trading stock, according to a University of Maryland survey.
We share the president’s concerns that the presidential immunity decision may allow an executive to avoid accountability for clearly criminal activity. But, again, amending the constitution is an arduous endeavor.
Supreme Court justices were given lifetime terms to insure an independent judiciary free from political pressure. Biden throughout his tenure has sought to politicize the court, casting it as a Republican front that stands in the way of the type of government Americans want.
In reality, his beef with the conservative leaning court is that he disagrees with its rulings. And in an affront to constitutional separation of powers, Biden has ignored decisions that didn’t go his way. For example, he boasted of “bypassing” the court when it ruled he didn’t have the authority to forgive student loans.
There’s a democratic process in place for altering the Supreme Court. It’s called winning presidential elections.