President Biden and Vice President Harris have proposed the greatest attack on the structure of the Supreme Court since Franklin D. Roosevelt’s notorious proposal in 1937 to pack the Court.
This time, the assault is being packaged as “ethics reform,” the true purpose of which is to undermine a Supreme Court they disagree with. Biden has proposed congressional passage of “enforceable conduct and ethics rules” for Supreme Court justices—we still have yet to hear much in the way of detail from him or Harris. He has also expressed support for term limits, which happen to be unconstitutional absent constitutional amendment, as has long been understood even in liberal circles. This power play is just a dressed up version of court packing.
In eyebrow-raising fashion, Justice Elena Kagan has come out in support of the Biden/Harris ethics scheme. The code of conduct the Court published last November was insufficient, Kagan says, echoing the Left’s critiques of the Code. As we know, their dissatisfaction with the current Court has never truly been about ethics. We “should try to figure out some mechanism” for enforcing a Supreme Court code of conduct, Kagan says, and the best choice for enforcers would be “judges lower down the food chain.” A judicial investigation panel of lower court judges that would entertain arguments for recusal is the mechanism provided by Senator Sheldon Whitehouse’s bill. As I have noted before, such a scheme would bring chaos to the Court. Nearly every significant case would see a flood of motions to strategically disqualify certain justices.
It is clear, as Senate Minority Leader Mitch McConnell and Senator Lindsey Graham have pointed out, that legislation premised on the “ethics reform” ruse is going nowhere. However much a Democratic president wants it, a Republican House does not, and it will never attain the supermajority support needed to overcome a Senate filibuster. (Assuming we still have a filibuster. Harris has made clear she wants to abolish the filibuster in order to codify Roe v. Wade, and if that were to happen for abortion, it would happen for other subjects of legislation.)
Biden and Harris must know the legislative reality, and of course FDR’s court-packing scheme went bust even with strong Democratic control of both houses. But they might be banking on the prospect that—as some historians believe was the case for FDR—making the effort could exert enough pressure on the Court to achieve their desired outcomes. Accordingly, a number of Senate Democrats seem to see no downside to calling for so-called “ethics reform.” It may reap not direct legislative success, but possibly similar results attained indirectly. (Justice Kagan recognizes this, too.)
Even in the absence of new legislation, it is worth emphasizing how easily the Court’s work can be seriously disrupted, if not upended, by scurrilous allegations. It is assumed that judicial panels will rid the system of frivolous charges. But they often do not—at least not soon enough. Especially in this hyper-politicized environment.
Recall what happened when the leftist dark-money group Demand Justice sent a letter complaining to Sri Srinivasan, chief judge of the D.C. Circuit and a Supreme Court shortlister during the Obama administration who could still be tapped for the high court. In an attempt to sabotage Justin Walker’s nomination to the D.C. Circuit, the group called for a “thorough inquiry” into the retirement decision of the outgoing judge, Thomas Griffith, speculating that then Senate Majority Leader Mitch McConnell’s input had something to do with his retirement. Demand Justice’s behavior, as it turned out, was not only cynical and baseless, but also cruel. As much of the D.C. Bar knew and Srinivasan should have been well aware, Griffith’s wife had long suffered a serious illness. The judge had been doing a great deal of work from home to care for her, and his decision to retire was straightforwardly to deal with her illness. But Srinivasan could not help himself. He carried water for Demand Justice, calling for Chief Justice John Roberts to refer the matter to “another circuit for review and disposition” and making public his order doing so. Not surprisingly, The New York Times engaged in its own hack job, smearing Griffith with Demand Justice’s innuendo without doing the basic homework typically expected of journalists. Also not surprisingly, Chief Justice Roberts rejected Srinivasan’s request.
Other examples of scurrilous complaints include the Alliance for Justice and Common Cause complaining about Judge Diane Sykes’ appearance at a Federalist Society dinner and the recent suspension of Judge Pauline Newman of the Federal Circuit. Newman is an elderly judge pushed out by colleagues despite evidence that she is capable of performing her duties and that it was her dissents and not debility that ruffled the feathers of other members of the court.
Unjust attacks on judges threaten to undermine judicial independence and therefore the rule of law. It is unthinkable that a sitting justice could be in favor of such a blatantly political proposal.
Just imagine the level of disruption that would occur if there were a pipeline of complaints to lower court judges, plenty of whom would have an ax to grind with one faction or another of the Supreme Court. That the entire proposed scheme is about bitterness over the Court’s direction may explain why Justice Kagan has waded into the controversy.
It is convenient that Kagan did not address similar calls for reform earlier in her tenure. Recall the compelling reasons based on her prior work as solicitor general that she should have recused herself in the Obamacare case. Conservatives including me made that argument here in National Review Online, and so did liberal law professor Eric Segall. She did not recuse. Today Segall recognizes that the Supreme Court’s current code of ethics would have compelled Kagan’s recusal. It is also unlikely that Kagan would try to turn up the pressure on ethics if Justices Ruth Bader Ginsburg and Stephen Breyer were still on the Court since, as I have previously explained, those ideologically friendly justices would have been the top targets of any ethics complaints.
Liberal bitterness over the Court’s recent decisions continues to be the basis of their pseudo-ethics outrage. And Justice Ketanji Brown Jackson has at least partly joined Kagan by openly considering the imposition of an enforceable code “as a general matter.” It is a sorry sight to see justices feeding the latest attacks on the very Court where they sit.