President Joe Biden's 40-plus year evolution on reforming the Supreme Court appears to be complete.
Biden is finalizing plans to propose major structural changes to the third branch of government.
From a report by CNN's MJ Lee and Devan Cole:
Chief among the changes Biden is planning to publicly back are term limits for the nine justices, who currently serve lifetime appointments. The president is also said to be preparing to throw his support behind an ethics code for the court that would contain an enforcement mechanism, which was notably absent from the code the court adopted last year.
Biden's move has been a long time coming for progressives and Democrats who have been pushing for court reform based on the following evidence:
► Citing an election year in 2016, Republicans delayed the appointment of a successor to Supreme Court Justice Antonin Scalia, refusing to hold a hearing for President Barack Obama's nomination of Judge Merrick Garland, now Biden's attorney general.
► Ignoring their own election year precedent, Republicans rushed through the appointment of a successor to Justice Ruth Bader Ginsburg, creating a new 6-3 majority of Republican-appointed justices that could last for decades.
► That new majority went in the opposite direction of public opinion, upending decades of precedent and reversing a federal constitutional right to an abortion.
► The conservative majority has also taken a more active role in striking down environmental policy while granting a form of superimmunity to presidents and reinterpreting the 2nd Amendment.
► Justice Clarence Thomas has been found to have accepted multiple gifts from billionaire friends.
► Thomas did not recuse himself from January 6, 2021, cases even though his wife actively worked with White House officials pushing for Trump's effort to overturn the election.
► Justices have ignored calls that they impose a binding ethics code on themselves.
Biden has long opposed Supreme Court reform.
In 1983, as a senator, Biden called Franklin D. Roosevelt's plan to place term limits on older justices and expand the size of the court "boneheaded." He may still feel that way. Biden's proposal does not appear to include an expansion of the size of the court, although Congress has made the court larger and smaller multiple times.
In 2020, during the Democratic primary, he was a voice against calls to reform the court, arguing that adding or subtracting justices would ruin its credibility. Instead, he promised to commission a panel to explore the issue.
That commission – The Presidential Commission on the Supreme Court of the United States – issued its final report years ago, in December 2021. It explored various proposals for court reform, including expansion and term limits, but did not endorse any of them. It is very clear from the report that Congress has been fighting over the Supreme Court for all of US history.
Commission members, who came from a breadth of ideologies, were split on whether Congress has the power to simply create a system of term limits for justices. There would also be obstacles to implementing the system over the course of years. There is historical precedent for expanding and contracting the court, on the other hand.
The most notable effort to expand the court – opponents call it court packing – came from Franklin D. Roosevelt, who became frustrated when the Supreme Court of the day struck down New Deal policies. The report notes that while the court packing plan was ultimately defeated in Congress, the threat of changing the court clearly changed its behavior, what's known as a "doctrinal shift."
From the Commission's report:
While the public as well as members of Congress debated the merits and flaws of the President's plan, the Court itself took action in a manner that surprised many observers. "Within weeks of the bill's introduction … the Supreme Court began prudently to change course by upholding New Deal measures that months earlier it seemed prepared to invalidate."
Roosevelt's plan, unlike anything Biden is likely to propose, had some chance of passing. Roosevelt's Democrats had a filibuster-proof majority of 69 votes in 1937. Biden's Democrats are barely in the majority at the moment. Any Biden proposal would almost certainly be squashed by the Republican minority in the Senate if it were to come up for consideration this year. Next year, Republicans may hold power in the White House and the Senate with hopes to appoint new, young conservative justices, not modify the court.
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