Two Truths and a Lie: Biden’s Radical SCOTUS ‘Reforms’

Even President Biden, in the past, has been able to clearly see the dangers and Constitutional problems with similar court-packing programs. In referring to Franklin Delano Roosevelt’s plan to add extra justices to a Supreme Court that was blocking some of his proposals, then-Senator Biden characterized the attempt with the old adage, “power corrupts, and absolute power corrupts absolutely,” recognizing the self-dealing nature of the idea.

Yet now, as a lame duck President who has announced he will not run again, Biden has reversed himself and called for an even more destructive scheme, which not only dilutes the voices on the current court by addition but actually severely limits the powers of sitting justices.

President Biden has called on Congress to impose “term limits” on Supreme Court justices, as well as a Congressionally determined “code of conduct,” and setting legislative limits on the presidential immunity granted by the recent Trump v. United States ruling.

Let’s play “Two Truths and a Lie” and find out how much you know about Biden’s radical proposed SCOTUS “reforms.” 

A. There are no serious ethical problems at the Supreme Court that must be addressed by the other branches.
B. This is not an especially “politicized” Supreme Court.
C. Biden’s term limit proposal is Constitutional and can be passed by Congress if they wish.

Let’s take each statement one at a time:

A. TRUTH! There are no serious ethical problems at the Supreme Court that must be addressed by the other branches.

For over a year, there has been a media drumbeat, echoed by Democrats and now finally the President, behind the idea that there is some kind of ethical crisis at the Supreme Court. But the alleged “scandals” discovered by biased outlets are overblown, and while corruption is an always-present possibility, none of these reports have resulted in serious violations of the code of judicial conduct already in force in the judicial branch, nor is there any evidence that a single case decision has been affected.

Nor has public trust in the Court plummeted in a way out of keeping with other institutions in American life. While the 30% of Americans who still have a “great deal” or “quite a lot” of confidence (and the further 31% who still have “some”) in the Supreme Court may not sound impressive, it comes at a time where few institutions can muster even that level of confidence. The Congress that proposes to do the ethical regulating, for example, barely registers at 9%. In an era of often-justified skepticism towards institutions, confidence in the Court has actually risen slightly over the past couple years. None of this seems to validate the narrative of a particular “crisis” in the Supreme Court that justifies upending the Constitutional order and the balance of power between the branches.

B. TRUTH! This is not an especially “politicized” Supreme Court. This court is no more “politicized”—in fact it’s considerably less so—than in decades prior when it was handing down rulings more favorable to Democrats. Even during the Court’s contentious last term, 40% of the decisions handed down were unanimous, and many of the others featured splits between the more conservative six members of the Court (only about a sixth of the 60 cases decided featured a 6-3 split between the conservative and liberal wings of justices, despite how often the media frames decisions that way). 

While it’s true that SCOTUS nomination hearings have become more and more politicized, starting with the infamous Bork hearing of the late 1980s, there’s little evidence that, once appointed, the decisions handed down owe more to politics than to judicial philosophy and legitimate differences in how to read the law.

C. LIE! Biden’s term limit proposal is Constitutional and can be passed by Congress if they wish.

The judiciary is a co-equal branch of government, along with the legislative and executive branches. The Constitution provides for the appointment and protection of federal judges for life, “during good Behavior.” The only mechanism in the Constitution for removing justices from the Supreme Court (other than their own choice to retire, or death) is impeachment. 

Once again, Senator Biden, back in 2005, used to understand this perfectly, when he called the Senate’s consideration of a nominee the “one democratic moment” provided for by the Constitution, during which elected representatives can decide if the nominee ought to be placed on the bench. These procedures are intended to provide some small-d democratic oversight over who gets placed on the bench, but to shield the justice thereafter from the winds of the political back-and-forth, allowing him or her to consider the law independently.

Because they alter the Constitution’s clear proscription for how long judges keep their positions in the judiciary, the President’s unwise proposal can only be considered as a Constitutional amendment, requiring a two-thirds majority of both Houses of Congress as well as ratification by three-quarters of the states before it can become law.