On President Biden's Supreme Court reform proposals...

Get the Point!

Yesterday, President Joe Biden proposed sweeping reforms to the United States Supreme Court during his visit to the Lyndon B. Johnson Presidential Library in Austin, Texas. 

Commemorating what's arguably LBJ's greatest legacy, his signing of the Civil Rights Act of 1964 60 years ago this week, Biden, deriding what he called "an extreme and unchecked (Supreme Court) agenda,” set the stage for what could become his signature legislative legacy—federal court reforms—if it passes. 

Warning: Do not hold your breath in hopes of Biden's proposals being passed any time soon due to the facts that Republicans hold the majority in the House of Representatives—and that a 60 vote supermajority would be needed to end the inevitable Republican filibuster in the Senate even if, by some miracle, Biden's proposal passes out of the House.

However, I further caution that delay doesn’t mean defeat! Meaning, with a vast number of Americans losing faith in the independence of the Supreme Court amid scandals, attacks on civil rights, and its expansion of authoritarian rule by the Executive Branch, the president's proposed reforms will soon become a hot topic in the presidential debates between Trump and presumptive Democratic nominee Kamala Harris—as well as in down ballot races that could find Democrats in the majority in both chambers of Congress come January. 

In addition to proposing term limits and ethics reforms, President Biden also called for a constitutional amendment that would reverse last month's Supreme Court decision in the U.S. vs. Trump case that provides immunity from criminal prosecution for any president who claims that their felonious acts were a part of their "official" duties as president. 

Biden, speaking for the second time since his rather surprising decision last week to not seek a second term, said, "I have great respect for our institutions, the separation of powers laid out in our Constitution. What's happening now is not consistent with that doctrine of separation of powers. Extremism is undermining the public's confidence in the Court's decisions."

Vice President Kamala Harris, when questioned later in the day about the president's speech, replied, "throughout the course of our Nation’s history, trust in the Supreme Court of the United States has been critical to achieving equal justice under law. President Biden and I strongly believe that the American people must have confidence in the Supreme Court...These popular reforms will help to restore confidence in the Court, strengthen our democracy, and ensure no one is above the law.” 

Indeed…

For the record, I am in FULL support of President Biden's proposals; I find them to be LONG overdue, and  I submit that I would LOVE to see a fourth proposal sooner or later—which would be to increase the number of Justices on the Supreme Court from nine to at least 13!

While the Framers of the Constitution advocated lifetime appointments for federal judges during the Constitutional Convention of 1787, they did so during a time when the average life expectancy for a white man was about 40 years! The Framers could not have foreseen that future male and female jurists would live (and work) well into their 80's, thus, my belief that term limits would provide each generation with a new set of judicial eyes and ears to consider the crucial cases and controversies of the times!

If Biden's term-limit proposal was already law, conservative Justices Clarence Thomas, Samuel Alito, and Chief Justice John Roberts would have been replaced in 2023 by three new progressive appointees…

As to judicial ethics reform, in each of the 200 or so cases that I've tried in state and federal courts, there was always point during the jury instructions when the presiding judge told jurors that the lawyers (and by extension, the judges) "must avoid even the appearance of impropriety." The fact that Justices Thomas and Alito have been pimped out with millions of dollars in cash, gifts, and trips by special interests—and brazenly don't care what anyone thinks about them being on the political stroll—is inexcusable! On this point, the president's proposal that justices "disclose gifts, refrain from public political activity, and recuse themselves from cases in which they or their spouses have financial or other conflicts of interest" is not just sound public policy—but plain old common sense!

Last, while President Biden has shown little interest in adding seats to the Supreme Court, a position that progressive politicians and pundits (including yours truly) have called for over the years, the issue could arise anew in a Harris administration, especially if at some point during those four years, Democrats (and the few remaining moderate Republicans) gain solid control of Congress. 

Lest we forget that since 1789, the Supreme Court has grown from as few as five sitting justices to as many as 10 in 1869; that year, then President Ulysses S. Grant signed a Judiciary Act into law that set the number of justices at nine–where it has remained ever since. 

In 1869, our nation consisted of 37 states and nearly 40 million citizens and yet today, over 300 million Americans in 50 states are still served by the same number of Supreme Court justices! 

The last president to propose adding additional justices was Franklin D. Roosevelt back in the early 1930's. Roosevelt, frustrated that a then conservative Supreme Court was opposing key aspects of his first term New Deal proposals to pull the country out the Great Depression, proposed adding six new seats for a total of 15; FDR never got the additional seats, but the very fact that he was bold enough to ask soon found the Supreme Court acting more favorably to his executive orders and progressive leaning legislation from Congress. 

Then Sen. Kamala Harris during Justice Brett Kavanaugh’s Senate confirmation hearings in 2018…

Today, the times are far different, and with political stalemates being more rigid, the mere proposal of additional judges will not be enough to intimidate the current 6-3 conservative majority into realizing that they are not aligned with the will of millions of people who do not support restrictions on abortion, birth control, IVF, or the reduction in civil liberties and civil rights that are fecund among the conservative minority in America. 

For the reasons outlined in the preceding paragraph, I surely look forward to Vice President Harris, one of the leading Senate Judiciary Committee members during her time in the Senate, to wield Supreme Court reform as a mighty hammer on the campaign trail this Fall! 

Stay tuned...