Shan Wu is a former federal prosecutor who served as counsel to Attorney General Janet Reno
President Biden unveiled his promised Supreme Court reform proposals by way of a Washington Post opinion piece. The piece promptly produced the predictable outrage of right-wing constitutional experts and outpouring of wiser-than-thou political punditry about the impossibility of achieving the proposals with the current Congress.
Biden’s proposal opens with the big ask of a constitutional amendment he calls the “No One Is Above the Law Amendment” meant to specifically counter the high court’s presidential immunity decision. This part of his idea is not really so much a reform as much as it is a thumb-in-the-eye (or some other finger gesture) to the current conservative majority on the high court.
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It’s a clever opening gambit because a constitutional amendment aimed at combatting tyranny is a great way to channel the anger of the Democratic base over not only the immunity decision but the overturning of Roe v. Wade, as well as numerous other power moves by the six conservative justices.
U.S. Supreme Court justices, from left to right seated, Justices Sonia Sotomayor, Clarence Thomas, Chief Justice John G. Roberts, Jr., Samuel A. Alito, Jr. and Elena Kagan; and from left to right seated, Justices Amy Coney Barrett, Neil M. Gorsuch, Brett M. Kavanaugh and Ketanji Brown Jackson.
Evelyn Hockstein/Reuters
The proposed amendment serves as a rallying cry without having to get bogged down in a litany of individual case decisions. Amendments to the Constitution are a big ask because the process to create one is laborious, requiring either two-thirds of the House and Senate or two-thirds of state legislatures calling for the amendment and then ratification by three-fourths of the state legislatures. But the big ask is sure to add to the explosion of energy in the new Democratic presidential ticket now led by Vice President Kamala Harris.
The other proposals are more modest and include an 18-year term limit for justices as well as requiring a binding code of ethics to bring them in line with every other federal judge—all of whom are subject to a binding code of judicial ethics. The 18-year term limit is carefully worded: “I support a system in which the president would appoint a justice every two years to spend 18 years in active service on the Supreme Court.”
Despite the on-cue cries from the right that term limits violate the Constitution’s granting of life tenure to the justices, the language does not necessarily mess with what the Chinese might call the justices’ “iron rice bowl.” Critics of the 18-year limit ignore the fact that limiting a justice’s “active” time on the high court doesn’t mean they are stripped of their life tenure. Rather it just limits how long they can vote on decisions.
I would argue that this does not even go far enough, because 18 years is still a very long time. What is really needed to reform the Court is to water down not only the length of time they serve but how many of them serve. I have proposed in the past a rotation system by which federal judges could be rotated through terms on the high court. There is no reason why we have only nine justices as though these are the best nine lawyers in the country. They aren’t.
Demonstrators rally outside the U.S. Supreme Court as justices hear oral arguments in a bid by President Joe Biden's administration to preserve broad access to the abortion pill, in Washington, U.S., March 26, 2024.
Evelyn Hockstein/ReutersThe need for a judicial ethics code that applies to justices is a no-brainer. As President Biden puts it: “This is common sense.” There simply exists no legitimate reason why the highest court in the land has no enforceable ethics code.
The typical argument against such a system is that it supposedly violates the separation of powers and would somehow hurt the independence of the justices. That is a nonsensical argument that should be put to rest once and for all. Justices are already subject to such laws as having to pay their taxes and not committing crimes. No one can seriously argue that being subject to those rules interferes with their independence or violates the Constitution and no one can seriously argue that having to follow a code of ethics would either.
But perhaps the most disingenuous criticism of Biden’s reform proposals is that it is politically unfeasible. Take for example, one conservative commentator, Ramesh Ponnuru, who claims that the proposal is nothing more than the equivalent of “boob bait” for the Democratic base. Ponnuru’s sexist and misogynistic remark—perfectly keeping with a Republican male’s view of women—seems to arise from his idea that a reform proposal lacks merit if it will be hard to pass legislatively. That boils down to a rule that if the right thing is hard to do then it’s not right at all. That’s wrong.
The truth is that doing the right thing is often hard. Sometimes it requires courage to do hard things. Sometimes there must be many failures before success. But one requirement is universal to accomplishing hard tasks: you have to start. In this way, it hardly matters whether Biden’s proposed reforms have any chance of success. What matters is that the President of the United States is acknowledging the deeply broken state of the Supreme Court and calling for a solution.
The Taoist philosopher Lao Tze is commonly quoted for the saying that the journey of a thousand miles begins with a single step. But alternative translations shed greater light on his quote. One alternative translation is: “A journey of a thousand leagues starts where your feet stand.” That’s what Joe Biden is doing. He’s giving us a start from where our feet stand right now.
