Biden’s SCOTUS reform: Not to be dismissed

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In an Oval Office speech recently, President Joe Biden announced that he supports reforming the Supreme Court, “because this is critical to our democracy.” But how? There are reforms that would make the institution more politicized — and then there are reforms that would make it less politicized. Encouragingly, Biden apparently favors some that move in the right direction.

Before Biden withdrew his candidacy, the Washington Post reported that he had two proposals in mind: First, establish an enforceable ethics code for the justices; second, subject them to term limits. Each idea presents constitutional issues. It is not clear if life tenure for members of the federal judiciary can be changed through ordinary legislation or would require constitutional amendment. Similarly, any effort by Congress to impose a binding ethics code on the Supreme Court could violate the separation of powers. For now, though, it’s enough to consider reform suggestions on their merits, which are real.

The Washington Post Editorial Board has long supported Supreme Court term limits. In part, this is because they are preferable to a more radical alternative progressives have been trying to push on Biden since the beginning of his presidency: to increase the court’s size and “pack” it with ideologically friendly appointees. The origins of this movement lie in Democrats’ understandable ire over the recent history of appointments. Senate Republicans managed to solidify a GOP-appointed majority for the foreseeable future by refusing to consider one of President Barack Obama’s nominees months before the 2016 election, then fast-tracking President Donald Trump’s pick under similar circumstances in 2020. The court has frequently ruled the way Republicans wanted, on everything from abortion to federal regulation.

But packing the court would answer Republican politicization with Democratic politicization. The point is to make the judiciary less of a partisan playground. Term limits would help achieve that. One reason Supreme Court nomination battles are so intense is because the stakes are so high. People live a lot longer than they did when the Framers wrote life tenure for judges into the Constitution — to protect the courts against undue influence. Nowadays, a president elected to a single four-year term can influence the judiciary’s course for a generation.

An 18-year term for justices, however, would fit better with the periods their presidential and congressional counterparts serve. If terms on the court were staggered, coming open every four or so years, it would be rarer for a president to install a disproportionate number. Conversely, winning the presidency more often would — appropriately — mean more appointments for a more popular party over time. Justices would feel less pressure to time their retirements based on partisan control of the presidency or Senate. And senators would have less reason to vote against qualified nominees for fear that their choices could doom their legislative agendas for decades.

The idea of an ethics code arises from recent scandals over the failure of the court’s existing self-regulation system. Justice Clarence Thomas took luxury vacations funded by a high-dollar GOP donor without reporting them on financial disclosure forms; Justice Samuel Alito was also reticent about his travel to an Alaskan fishing lodge on the dime of a hedge fund executive whose firm had business before the court. The involvement of Thomas’s wife in “Stop the Steal” efforts after the 2020 election also raised eyebrows. Neither justice recused from arguably related proceedings, though eventually — begrudgingly — Thomas, without admitting any ethical lapse, produced more forthcoming reports. (Alito insisted in op-eds that he had disclosed everything the rules require.)

This debacle pointed to the need for greater clarity as to the types of gifts that require disclosure, as well as what fundraising activities are appropriate, which the court, belatedly, provided. What’s still lacking is an enforcement mechanism, which could be hard to design without intruding on the judicial branch’s independence. The president’s forthcoming proposal ought to contribute to that debate by suggesting not only a set of standards to which the court ought to be held but also a system for holding them to it that could pass constitutional muster. One possibility is to keep that system within the judicial branch, by giving the job to retired federal judges whom justices could at least consult regarding their ethical responsibilities.

Now that Biden is no longer a candidate, there is less chance that his proposals can be dismissed as an election-year gambit. Certainly, he should write them as if that’s true; members of the legislative and judicial branches should treat them in the same spirit, too.