Speaking of the White House I found the “Fact Sheet” produced there an interesting exercise in giving the impression of doing something while actually doing nothing interesting:
In the face of this crisis of confidence in America’s democratic institutions, President Biden is calling for three bold reforms to restore trust and accountability…
Here are the three bullet points:
- No Immunity for Crimes a Former President Committed in Office
- Term Limits for Supreme Court Justices
- Binding Code of Conduct for the Supreme Court
Each of those would require a constitutional amendment. How likely is any of those amendments to be achieved in the foreseeable future?
I did have a couple of questions. Why term limits for Supreme Court justices but not for members of the House or Senate. There are presently members of each house who have held their seats longer than any Supreme Court justice presently sitting. And why not a “binding code of conduct” for members of Congress? Or for the president?
Update
At Axios Stephen Neukam and Andrew Solender report that President Biden did not confer with congressional Democrats before making his Supreme Court reform proposals:
The White House didn’t consult Senate Judiciary Committee Chairman Dick Durbin and other key congressional Democrats on President Biden’s proposals to dramatically overhaul the Supreme Court, Axios has learned.
Why it matters: The lack of coordination with Capitol Hill signals that Biden’s SCOTUS proposals amount to more of a pre-election messaging push than a legislative imperative.
So it looks like my hipshot reaction was right.
Not clear to me that 1 and 3 need an amendment, especially 3. The larger issue is that none of these can pass Congress, even number 3. The party with the most number of SCOTUS justices wants to be able to freely bribe them. Oops, I mean offer them gratuities, which are entirely legal as they tell us.
Steve
Both require either requires a constitutional amendment or a new set of supreme court judges.
Even Biden’s fact sheet is saying he is proposing a constitutional amendment for 1. There is no statuary fix for a ruling based on the Constitution.
I suspect the #3 is not within Congresses power. “Binding” mean it is enforceable. Enforced by the Justice Department which is subordinate to the wishes of the President? Enforced by a forum of lower level judges — which flips the hierarchy of the judiciary on its head? Enforced by the justices of the Supreme Court, that’s a recipe for turning a court of 9 into a court of 5. The only means to enforce is the one given by the constitution, impeachment followed by conviction of the Senate — but Democrats can file articles of impeachment today. So what’s new?
I like Dave’s point about comparing the branches and questioning whether there is any reasonable distinction being made for different treatment. Judges have absolute immunity for the same reason that Presidents do, at least from an historical view. The common law provided absolute immunity to legislators, judges and chief executive officers, and a more limited immunity for lesser executive officials. Is that whole framework corrupting? Pull it all down!
@Curious, I think Justice Kagan recently spoke about the need for enforcement of judicial rules if for no other reason to protect the justices from absurd public outrages with an independent evaluation. I believe Congress has a code of ethics, but it’s not enforceable outside of Congress either.
@PD Shaw. Your data point is apt. Congress has a self-enforced code of ethics; but it presents no issues because the constitution assigns to Congress the power to police itself in Article 1. That same constitution assigns the power of determining “good behavior” of judges to Congress through impeachment.
1. No Immunity for Crimes a Former President Committed in Office
Requires a constitutional amendment because the Supreme Court says it found absolute immunity in the Constitution. Common law generally included a not in “bad faith” requirement for immunity. While the King had absolute immunity, that may not be the model the Founders intended for the president.
2. Term Limits for Supreme Court Justices
That might require a constitutional amendment, as the Court would make the determination about whether any such statute was constitutional.
3. Binding Code of Conduct for the Supreme Court
The Supreme Court can bind itself, of course. Congress can pressure the Court by threatening to enact regulations concerning the Court’s jurisdiction under Article III, Section 2, Clause 2. Or cut its funding.
(ETA: Thomas can be held accountable under alleged tax law violations.)