Reform of the United States Supreme Court is back in the news, with an op-ed piece yesterday in the Washington Post by president Joe Biden. During the last presidential campaign, when Donald Trump made his third appointment to the court, there was an expectation that the Democrats in power would, as I put it, “try to do something to overcome what they will see as an unfair situation on the court.” But in fact the issue has been relatively quiet until now.
Biden makes three proposals: to overturn the recent judgement on presidential immunity in Trump v. United States, to end life tenure for justices and to introduce a binding code of ethics. He knows, of course, that none of this will happen in the remainder of his term, but he hopes to make the package an election issue that will work in Kamala Harris’s favor.
The first is explicitly framed as a proposed constitutional amendment, called the “No One Is Above the Law” amendment. Since most legal scholars think that Trump v. United States was wrongly decided, it could be argued that all that’s needed is a Supreme Court majority that recognises that fact, but that seems a long way off. Constitutional amendment might be a long shot, but it’s a better route to build a public campaign around. And it can happen: the notorious decision of Dred Scott v. Sandford was ultimately overturned by the fourteenth amendment.
Biden’s third proposal, for a binding code of ethics, makes no mention of changing the constitution. In the abstract that makes sense (other federal judges are subject to such a code with no apparent constitutional problem), but trying to actually devise an enforcement mechanism that would be free from constitutional challenge is tricky – especially with a supreme court as jealous of its status as this one is. No word from the president, however, on that question.
Where it gets interesting is with the second proposal. Four years ago I explained the problem:
Life tenure means that replacement is capricious: some presidents may get to make several appointments, others few or none. It also means that judges may stay on the court in the hope of outlasting an uncongenial president, even if they are in poor health or well past their intellectual peak. And it provides an incentive to appoint younger judges, so as to maximise the return they provide, even if they lack an optimal degree of experience.
Biden’s suggestion is that justices instead should serve for a fixed term of 18 years. Why 18 and not, for example, 16, which would be four presidential terms? Because there are nine justices, so this would mean, as he says, “the president would appoint a justice every two years.”
But that only makes sense if you’re starting with a clean slate. In reality, there are already nine justices in place, appointed for life and with ages ranging from 52 (Amy Barrett) to 76 (Clarence Thomas). Unless they were to be removed en masse, the new system would have to be phased in, appointing a new justice every second year, so that the numbers on the court would vary unpredictably and only stabilise again at nine after 18 years had elapsed or the last of the current nine died or retired (whichever happened last).
Adding new justices can be done by ordinary legislation: the last occasion was in 1869, and many observers think the court is overdue for expansion. But ending life tenure for the new justices – and a fortiori for existing ones – can only be done by constitutional amendment; section one of article three states clearly that they “shall hold their Offices during good Behaviour,” so the only current means of removing a judge is via impeachment.
Biden does not mention this problem either. His presidential commission on the court, in its final report in 2021, discussed (without endorsing) some ingenious ways of getting around it, but none of them are at all convincing. And the practical reality is that if a statutory workaround was tried and challenged, the existing justices would be almost certain to regard it unfavorably.
So serious judicial reform means constitutional amendment, and no successful constitutional amendment has been proposed since 1971. In today’s polarised environment it’s hard to imagine how one could succeed, but it’s surely a debate worth having.
The World is Not Enough 