The first and easiest question to answer about the Supreme Court reform package that President Biden announced Monday is whether there is any hope for passage or enactment by Congress today.
There is none.
With Congress hopelessly polarized and the Supreme Court hopelessly political, there is little chance of action on Biden’s proposal in the coming months, and the administration knows it.
Indeed, before Biden even revealed him in a speech at the LBJ Presidential Library in Texas, Republican House Speaker Mike Johnson called him “dead on arrival.”
Why choose now to introduce someone? After all, Biden has consistently resisted calls from progressives to try to overturn the court — and he’s been under pressure since taking office, as President Trump just tilted the court to the right by appointing three justices.
The immediate explanation for the timing is that it has made the Supreme Court, now perhaps the most unpopular of all federal government institutions, the focus of the election, which will likely point voters to Vice President Kamala Harris.
It was no surprise (and perhaps exactly what Biden and Harris wanted) when Trump came out with a defense of the court.
But the proposal should not be dismissed as a political move. Biden and the Democrats are also playing the long game, mainly making the court a campaign issue. Then if he wins control of both chambers and the White House, he can portray the election as a mandate for substantial reform.
Biden’s proposal is in three basic areas. The first, ethics, responded to a series of scandals involving the eyebrows or actions of naked partisanship by Justices Clarence Thomas and Samuel Alito. Second, the term of service and the method of appointment, proposed by Biden to be changed to 18 years per justice and a fixed quota of two new judges per presidential term. And the third, the new court, the opinion of immunity stunningly broad on January 6 Trump’s prosecution by the Department of Justice.
Biden announced the reform in a Washington Post op-ed that, interestingly, was led by the immunity decision, which Biden wrote violated the basic principle of the country: “No one is above the law.”
It is true, but Biden and Harris, who quickly approved the proposal, clearly have calculated that of all the unpopular measures in the court, the immunity decision that most offends the American voters can swing Harris.
Biden’s proposal acknowledges that the decision can only be overturned by a constitutional amendment. I am dubious; careful reading of the Supreme Court’s sweeping immunity decision which suggests that the end is anchored in the perception of the principles of good government dressed as constitutional law.
The problem here, as in one way or another with all proposals, is the entrenched principle that the Supreme Court has the last word. (One thinks of Justice Robert Jackson’s famous line “We are not final because we are infallible, but we are infallible only because we are final.”)
Thus, the famous constitutional amendment process, which requires two-thirds of the house or state to request and three-fourths of the state to ratify.
The most recent constitutional amendment, the 27th, took more than 200 years to ratify. The Equal Rights Amendment, first proposed in 1923 to guarantee the rights of Americans regardless of sex, has yet to pass.
The ethics provisions of Biden’s package may have the strongest chance of passing. It is conspicuous that the justice of the Supreme Court – alone among government officials – asked to create and apply their own rules on issues such as whether they can take or have to open gifts from parties that may have an agenda with the court. Although the court adopted an ethics rule for itself last fall, they have no teeth. Justice Elena Kagan last week called for the rule to be subject to an enforcement regime other than the judges themselves.
But in my view, the most important component of Biden’s package is his proposal to change the term of the Supreme Court from age to 18 years, and, with a consistent rhythm, guaranteeing each president exactly two appointments.
The reform plan is to eliminate the Armageddon quality of the current confirmation war. Lifetime appointments make the stakes very high, leading to carefully curated young nominees who could serve 40 years or more and wield enormous influence, much like Trump’s relatively young cadre of appointees.
Term limits will prevent an imbalance if one president makes too many appointments and the other makes too few. Democrats are understandably frustrated at the bad luck – and obstruction of the GOP — which allows a Republican president to pick six of the current nine justices, in a state where more people identify as Democrats than Republicans and where Democratic presidential candidates have won the popular vote in seven of the last eight elections.
This proposal will do nothing to reduce the current imbalance. Progressives have pressured Biden to propose four additional seats on the court to overturn the current uber-conservative hammerlock. The Constitution allows for such expansion, but the history of FDR’s court packing plans and similar efforts clearly convinced Biden that such an approach would bring the package with political controversy and the possibility of a long run that would reduce the clean appeal of other provisions.
As for the court, today’s proposals only strengthen the grave loss of confidence has been brought with overreaching itself. As for raw power, it can continue on the road and remain oblivious to many wounds. But the history of the Supreme Court teaches that whatever authority it recognizes in individual cases, it cannot be exercised indefinitely against the grain of the American people.
As Alito said In the comments he heard, “one side or the other will win.”
Harry Litman is the host of the “Talking Feds” podcast. with “Saying San Diego” speaker series. @harrylitman
