Photo by Nathaniel St. Clair
In a July 29 Washington Post op-ed, president Joe Biden lays out a three-part proposal for reforming the Supreme Court. With Biden in full-blown “lame duck” status (he’s no longer seeking re-election), it’s better read as a “think piece” than as a real policy proposal with any chance of adoption. But it’s still food for thought, so let’s think.
Biden’s proposal comes in three parts:
First, a constitutional amendment to “make it clear” (as if it wasn’t already) that there is no immunity for crimes a former president committed while in office.
No such amendment should be necessary, nor is any amendment likely to garner 2/3 support in both houses of Congress and ratification by 3/4 of state legislatures at this time, nor would it likely matter anyway even if ratified. After all, the Supreme Court’s majority simply ignored the text, meaning, and history of the US Constitution to get the magical immunity outcome it wanted for former president Donald Trump. Why would we expect the court to respect a new amendment when it won’t respect the existing law?
Second, term limits of 18 years for Supreme Court justices. Biden doesn’t mention that those term limits would likewise require a constitutional amendment, or that they wouldn’t solve the court’s “politicization” problem (his proposal would still retain presidential appointment and Senate confirmation of justices).
Third, a “binding code of ethics” for the court. But again, absent a constitutional amendment creating some other process, the court (or Congress, via impeachment) would themselves remain the ultimate arbiters of whether that code was violated. Neither the court nor Congress has taken action on (for example) justice Clarence Thomas’s flagrant acceptance of bribes under the current system. How would a new “code” fix that?
The three proposals all fail right at the starting point. They’re not going to enjoy adoption before Biden’s retirement next January, if ever.
So why not aim for the stars instead and propose REAL reforms that would be just as difficult to pass but that might solve the biggest problems — the partisan/political nature of how the court is chosen and the lifetime tenure that gifts the justices with impunity for poor or corrupt decision-making?
My proposal:
First, one-year terms for a Supreme Court composed of an odd number of randomly selected US citizens (the process is called “sortition”) who, after their names are drawn, demonstrate a standardized test IQ of greater than 100. No conscription — any citizen can refuse to serve. No presidential appointments allowed and no Senate confirmation needed.
Second, sequestration from the beginning to the end of each term. The justices live in a barracks facility. No phones. No email. Recreational television, but no news programs. A well-stocked law library, with classic novels for recreational reading, but no current events punditry allowed.
One year in total isolation with no sensory input other than the Constitution, the law, and the filings to affect rulings. Then a new court takes over.
About as likely to pass as Biden’s proposals, but at least worth the effort.
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