Far from defending democracy, the president’s plan rejects the very idea of limited government.
Far from defending democracy, the president’s plan rejects the very idea of limited government.
E ver since President Joe Biden decided to cap off his term in office with a full-scale political attack on the U.S. Supreme Court and its justices about two months ago, the plan has rightfully come under scrutiny, and not only from those you would expect. While two justices recently indicated support for an enforceable code of ethics, another provided a two-word warning: “Be careful.”
Careful is precisely what everyone should be when considering Biden’s problematic proposal. Ever since the Court overturned Roe v. Wade — the 1973 abortion decision that usurped the legislative branches and that even Justice Ruth Bader Ginsburg said was poorly reasoned — the Left has mounted a relentless assault on the Court. That pummeling has now come full circle, just in time for the 2024 election, so it’s reasonable for Americans to be especially concerned.
Biden’s op-ed, published in the Washington Post on July 29, advances a radical and ill-conceived scheme that would place the Court under the thumb of the political branches. His proposed “reforms” include the imposition of a binding code of conduct and 18-year term limits on justices. These proposals present very real threats to the separation of powers established by our Founders. They are also unpopular, according to a recent Mason-Dixon poll.
Biden’s term-limit proposal would push one justice off the bench every two years, meaning that a president who served two terms could appoint four members of the Court. The objective of this change is not to “improve” the judiciary or restore public trust — it’s to bend the Court to the president’s will. It assumes that justices will vote as partisans representing the interests and politics of those appointing them. That concept is foreign to our nation’s long-running tradition of an independent judiciary.
Similarly, Biden’s call for Congress to impose a binding code of ethics on the Court is destructive to separation of powers. It would allow Congress to set the rules policing which justices get to hear which cases.
For example, Senator Sheldon Whitehouse’s proposed ethics bill would have allowed public “complaints” against justices to be adjudicated by lower-court judges. And it would have allowed parties before the Court to file motions to recuse justices — motions that would be voted on by the other justices. These rules would inevitably lead to gamesmanship by litigants and acrimonious public battles over recusal motions. Indeed, members of Congress already routinely make frivolous calls for justices to recuse themselves from politically controversial cases.
The president says these changes are urgently necessary because the Court has issued “dangerous and extreme decisions” that “overturned settled legal precedents,” such as the Dobbs decision that reversed Roe. He fails to mention, however, that by overturning Roe, the Court set an example of how it could self-correct a judicial power grab that took lawmaking authority away from the legislative branch and the states.
Biden also reserves harsh words for the Court’s decision this past term in Trump v. United States, which held that presidents are entitled to at least presumptive immunity from criminal prosecution for their official acts. He claims the ruling means “there are virtually no limits on what a president can do” and asks for a constitutional amendment to reverse it. That vastly overstates the Court’s decision, which affords no immunity for unofficial acts and the opportunity to rebut claims of immunity for many official acts.
That decision, too, protects the separation of powers, because, in the Court’s words, immunity is necessary to “safeguard the independence and effective functioning of the Executive Branch and to enable the president to carry out his constitutional duties without undue caution.” Without it, there will be political witch hunts based on all manner of difficult presidential decisions.
Biden also wrongly argues that the Court is “mired” in an unprecedented “crisis of ethics” that raises “questions about the court’s impartiality.” But apart from disagreeing with Court opinions he dislikes on political grounds, Biden points to no evidence that the Court’s impartiality or judgment have been compromised. Rather, the only thing “unprecedented” is the president’s unrelenting attack on the integrity of the Court in retaliation for Dobbs and other decisions he doesn’t like.
Far from defending democracy, the president’s plan rejects the very idea of limited government. His effort to empower the political branches at the expense of the Court would require gutting the Constitution’s built-in restraining mechanisms: namely, the separation of powers and federalism, constitutional guardrails that protect our most cherished freedoms.
On these shaky political grounds, the president would upend centuries of constitutional practice and tradition that have buttressed our independent judiciary. No one should be fooled. This move has nothing to do with protecting the Court and everything to do with the Left’s desire to control every institution in society. And today that means launching political broadsides against our judiciary. Those attacks must be rejected — lest we trade our independent judiciary, the envy of the world, for a politicized replacement.