Joe Biden’s political assault on the Supreme Court

A police officer walks on the plaza of the US Supreme Court. Picture: AFP.

President Biden on Monday announced his plan to “reform” the Supreme Court, and it’s important to understand how radical this political moment is. The President is putting the full weight of the Democratic Party behind an assault on judicial independence and the constitutional order. You might call it an attack on democracy.

“I have overseen more Supreme Court nominations as senator, vice president and president than anyone living today. I have great respect for our institutions and the separation of powers,” Mr. Biden said in an essay in the Washington Post justifying his assault. “What is happening now is not normal, and it undermines the public’s confidence in the court’s decisions, including those impacting personal freedoms. We now stand in a breach.”

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Never mind the spectacle of a man in public life for 50 years demanding term limits. The “breach” is his. As a Senator in 1987, he helped to defeat the superbly qualified Robert Bork for the Court because Bork endorsed judicial originalism. But the originalists have prevailed in the long run and now have great influence on the Court. This is what infuriates him and his fellow Democrats. So they are now willing to destroy the Court to supposedly save it.

“Destroy” is not too strong a word. Mr Biden is proposing to subject the Court to an ethics regime “enforceable” by someone other than the Court itself. His conceit is that this merely means the Justices would have to abide by the Code of Conduct of the Judicial Conference of the United States.

But the Justices already have a code of conduct they enforce that is nearly the same as that judicial code. The difference is the demand for outside enforcement. Democrats on the Senate Judiciary Committee want lower-court judges to investigate charges of ethics violations and then rule on the Justices’ behaviour.

This is an invitation for partisans to besiege the Court with complaints, however trivial. If you want to know how that would go, consider that last month the 11th Circuit Court of Appeals stopped accepting duplicative complaints about Judge Aileen Cannon, who is sitting on the Donald Trump documents case. The circuit court received more than 1,000 complaints in a week as part of what it called an “orchestrated campaign.”

Mr Biden says his reform will “restore trust and accountability to the court and our democracy,” but it would do the opposite. The deluge of ethics complaints, amplified by the press and partisans, would leave the public with the impression of routine corruption. This would further undermine respect for the Court’s decisions.

That’s even more true of Mr. Biden’s proposal to make it easier to disqualify Justices from hearing certain cases. The decision — often the duty — to sit on a case is at the heart of the judicial enterprise.

Sen. Sheldon Whitehouse’s ethics bill, which has passed the Senate Judiciary Committee, would let litigants at the Court file motions for recusal by Justices, whose colleagues could boot them off cases. This would make the Court an adjunct of whatever political atmosphere exists at a given time. The Justices targeted most would be those who issue unpopular opinions, however correct they are on the law or Constitution.

The President’s claim that the Court is currently “mired in a crisis of ethics” is simply false. Justice Thomas failed to disclose that he flew on a friend’s private aircraft before the Judicial Conference changed its rules to require that judges disclose such flights. He violated no judicial rules. No one has come up with any evidence that the Court’s rulings, or any Justice, has been influenced by gifts or other outside influence.

If Mr. Biden and Democrats were really concerned about ethics in government, they’d impose a total ban on Congress of all gifts, trips to conferences at fancy resorts, speaking fees, or anything else that provides even the appearance of a conflict of interest. But they won’t because the Members enjoy those perks and their anger at the Court has nothing to do with ethics. They are using ethics as a political ruse to gain more influence over the Court and its decisions.

Mr Biden also endorsed an 18-year term limit for Justices, though the Constitution gives them life tenure. The idea is that Congress can create a “Senior Justice” position akin to the “senior status” that judges take on the circuit courts. But those lower-court judges take that status voluntarily, and Mr. Biden wants to forcibly retire Justices to duties akin to watching paint dry.

Adam White, who served on Mr. Biden’s judicial commission in 2021, makes the useful point that term limits would tie Supreme Court vacancies and appointments even more to presidential elections. He says this would further erode the appearance of judicial independence and make “the Court a spoil not just of politics, but of presidential politics exclusively.”

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Mr Biden also proposed a constitutional amendment to overturn the Court’s recent decision on presidential immunity, but we’ll leave that for another day. Suffice to say that it’s impossible to over-estimate how pernicious Mr. Biden’s reform plan is. It doesn’t matter that its chances of passing are nil at the moment.

The President is giving this proposal an official Democratic Party imprimatur, and Vice President Kamala Harris was quick to endorse the plan on Monday. Its most damaging parts are a threat to pass the next time Democrats control all of the government.

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And what about Republicans? Do they realise the Court’s future is on the ballot this year? Mr Trump has spoken up in his fashion, but will Senators start explaining what is truly at stake? Maybe J.D. Vance could stop talking about cat ladies and start talking about the threat the Biden scheme poses to the Court and our constitutional republic.

The Wall St Journal