Court reform shouldn't be partisan
A constructive discussion and debate could be productive. Biden's broadside wasn't.
It is unfortunate that President Joe Biden has cast possible reforms of the U.S. Supreme Court in the context of harsh attacks on the court’s integrity and legitimacy.
There is a productive conversation to be had about whether a system of staggered terms for the justices would strike a better balance between independence and democratic accountability than the current lifetime tenure. However, by making court reform a partisan political talking point, Biden excludes from the conversation those of us who believe that, as a general proposition, the current court is returning to the role envisioned by the framers. And he makes reform less likely rather than more likely.
In the constitutional order, the principal role of the court was intended to be enforcing the limitations and separation of powers contained in the Constitution. In the modern era, the court has frequently failed to enforce the separation of powers and often usurped the legislative function intended to be reserved for Congress and, indeed, the various state legislatures. This was almost always done to advance liberal policies. Hence the harsh reaction on the left as the current court appropriately unwinds these tendencies.
While lifetime tenure was intended to protect the ability of justices to exercise independent judgment, the appointment process – nomination by the president and confirmation by the U.S. Senate – was intended to provide an indirect measure of democratic accountability.
There is such a thing as judicial philosophy, a general approach to the job. While justices exercise independent judgment in individual cases, the body politic indirectly influences the judicial philosophy under which it is governed through the appointment process.
In the modern era, this has become a more politically acute and fraught exercise. And it has resulted in distortions that the framers didn’t anticipate.
With lifetime tenure, which presidents get to make Supreme Court nominations is random, depending on the death or retirement of a current justice. And games get played. An aging justice is more likely to retire if the president is likely to nominate someone of a similar judicial philosophy.
And games get played with the confirmation process. The hostility toward the current court by the left is in part a consequence of then GOP Senate Leader Mitch McConnell refusing to bring a nominee of President Barack Obama up for a vote, leaving a vacancy for Donald Trump to fill instead. The left believes that taints the legitimacy of the current court, and they have a point.
The randomness of when appointments come open combined with lifetime tenure has pushed the age of new justices down. A majority of the current court were in their 40s when confirmed. The oldest was 53. Candidates in their mid to late 50s aren’t even really considered these days, even though that is arguably the age range in which the most seasoned and experienced jurists would be found. The appellate court experience of today’s nominees tends to be just a few years.
One reform tendered would be to replace lifetime tenure with 18-year staggered terms. That way, each presidential term would see two supreme court seats become vacant. There would be a regularity to the democratic accountability through the appointment process and the ability to indirectly influence the governing judicial philosophy.
The right way to do this would be through a constitutional amendment, since lifetime tenure is in the Constitution. If the amendment included a requirement that a president’s nominee to the court receive an up-or-down floor vote within a reasonable period of time, a lot of the gamesmanship of the current exercise would be abated. An 18-year term for justices appointed in their 50s wouldn’t be any less protective of judicial independence than lifetime tenure. And it would reduce the likelihood of a justice hanging on well into his dotage, either out of stubbornness or a desire to reserve the appointment for a president of a similar judicial philosophy.
If done through a constitutional amendment, the reform would have to command, and reflect, a very broad consensus that this offers a better balance, irrespective of preferred judicial philosophy. It would be a good government reform, not a partisan act of retribution.
Biden, however, proposed to effectuate the reform the wrong way, and in a way that’s constitutionally suspect, at best. Instead of a constitutional amendment reflecting a broad consensus, Biden proposes jamming through a statute on a partisan basis at a time in which Democrats hold all the cards. Kamala Harris has endorsed that, another point of worry about the prospect, currently dim, of Democrats holding the presidency and the Senate, and taking back the House.
The Biden proposal is to, by statute, effectively put justices on a type of senior status after 18 years. They would remain on the court but not sit for any cases heard on appeal, which is most of them. They would be replaced for appellate cases. They would only sit on the rare cases in which the Supreme Court has original jurisdiction, such as disputes between states.
The claim is that this would skirt the constitutional grant of lifetime tenure, since the justices put out to pasture would technically still be on the court and would theoretically still sit if an original jurisdiction case came up. But that’s obviously a long way from what the framers intended by lifetime tenure.
Biden also supports some sort of ethics regimen in which some outside group, proposals differ, could boot a Supreme Court justice off a specific case. This would unleash an avalanche of competing efforts among litigants to rearrange the composition of the court from what resulted from the constitutional order to one perceived to be more favorable to their case. Even if the body invested with the mandatory recusal authority exercised it sparingly, or even if not at all, the court’s deliberations would become highly politicized in a way contrary to the framers’ intent.
The catalyst that spurred Biden to make this a cause as he saunters off the stage apparently was the Supreme Court’s decision about presidential immunity. Biden advocated a constitutional amendment to override the decision, although he offered no specifics about what such an amendment would contain.
Even though I believe that, in general, the current court is headed in the right direction, it did get this case wrong.
Antonin Scalia’s lasting influence on the court’s jurisprudence was reflected in Justice Sonia Sotomayor’s dissent in the case. She made a persuasive originalist argument that the majority’s broad grant of immunity was contrary to the framers’ intent.
The majority argued that the framers wanted energy in the executive and that would be wanting without broad immunity for the decisions a president makes, particularly in our litigious age.
However, Alexander Hamilton, who made the forceful argument about the necessity of energy in the executive, also made explicit that this did not include post hoc legal immunity for his actions. That point is made in several of Hamilton’s Federalist Papers dealing with the executive. Perhaps most on point was in Federalist No. 77, in which he included, among other measures rendering the president accountable, this: he being liable “to the forfeiture of life and estate by subsequent prosecution in the common course of law.”
The court majority substituted its judgment about what was necessary to preserve energy in the executive for the framework adopted by the framers, which included post hoc legal liability for misconduct.
That acknowledged, the court majority has a point about how, in our litigious age, such liability could be abused and politicized. A discussion about in what circumstances a president should be immune from post hoc liability and in which circumstances he should be liable, and how best to make the law reflect that, would be productive.
The extent to which the decision lets Donald Trump off the hook remains to be seen. A solid argument can be made that in the cases currently being prosecuted – obstructing a subpoena for documents he improperly retained and attempting to overturn election results – Trump wasn’t operating as president but as an individual and a candidate. With respect to overturning the election results, Justice Amy Coney Barrett makes that point in her concurrence.
An independent judiciary is a bulwark of liberty in our constitutional order. Reforms are worth considering. But it is important to proceed cautiously and with the right spirit. Biden failed on both counts.
Reach Robb at robtrobb@gmail.com.