A Wicked Threesome

For SCOTUS Reform

That’s right, y’all!  Your favorite legal hack is back 😉

Two weeks ago, I published this somewhat controversial piece which broadly challenged the ethical standing of our current Supreme Court.  It caused quite a stir (in our little corner of the Internet, anyways), but I’ll say this: I stand by every word I wrote.  As an attorney, it has been exceptionally demoralizing to continue practicing under the dark cloud of a legal authority which largely defies precedent, disregards impartiality, and declines to ensure the fundamental promise of equal justice.

Old though he may be, President Biden heard my cries for help and recently proposed three methods of Court reform, as outlined below.  

Method 1: The “No One Is Above the Law” Amendment.  

In July 2024, the Court issued a decision in Trump v. United States which established the presumptive immunity from criminal prosecution for a president’s “official acts;” i.e., official acts carried out in one’s official capacity.  The proposed Amendment would legally establish that there is no immunity for the crimes committed by a president while in office.         

Why it works: Let’s throw this one back to the originalists, who argue that the Constitution should maintain its intended meaning at the time of its adoption.  The Founders clearly believed in a separation of powers, whereby the government is divided into distinct branches (executive, legislative, and judicial) with independent authorities.  Absolute presidential immunity utterly decimates this principle by imparting unchecked and total power upon a singular ruler.  See also: dictatorship.  Thus, this Amendment would restore the very power structure upon which our nation was built.  

Maybe you’re more of a living constitutionalist, and believe that the Constitution is a dynamic (or “living”) document which should evolve with changing social values.  Even here, the amendment still works.  The current social climate emphasizes the principles of transparency, accountability, and equality before the law, and the broad belief that no one, regardless of their status, should be above the law—even the president.  

No one is above the law, indeed.

Why it doesn’t: Constitutional amendments require a two-thirds vote of both houses of Congress, followed by ratification by three-quarters of the states; currently, the amendment would require 60 votes in the Senate to block a Republican filibuster.  This is an extremely high bar and unlikely to pass given the current political climate, with House Speaker Mike Johnson promising that the amendment would be “dead on arrival in the House.”  

Method 2: A term limit by which Supreme Court justices are limited to 18 years on the bench, thereby allowing presidents to appoint a new justice every two years.  

Why it works: The whole point of a lifetime appointment to the Court is that, “[b]y design, this insulates [justices] from the temporary passions of the public, and allows them to apply the law with only justice in mind, and not electoral or political concerns.”  That same insulation exists with the implementation of term limits, but also restores judicial balance, depoliticizes appointments to the bench, and allows for a Court which evolves with its people.  The move with also has broad public support, as recent polling shows that two-thirds of Americans support term limits for Supreme Court justices.    

Why it doesn’t: It’s a “one size fits all” approach, meaning that impartial and effective justices would also be removed under this practice.  It can also be argued that term limits would merely contribute to political polarization, with Supreme Court nominations becoming a flagship issue of any presidential election in which two-term presidents could potentially select 44 percent of a sitting Court.  (That statistic is pulled from this larger article addressing the pros and cons of term limits, which I highly recommend).  And once again—only a constitutional amendment could enforce term limits, which seems unlikely to pass at this time.

Method 3: A binding code of conduct for the Supreme Court.  

As recently as November 2023, the Court signed a revised code of conduct to dispel “the misunderstanding that the Justices of [the] Court, unlike all other jurists in this country, regard themselves as unrestricted by any ethics rules.”  However—unlike that by which every other federal judge is bound—the Supreme Court code of conduct is entirely self-enforced.  Under Biden’s recommendation, an objective mechanism would exist for ensuring the justices’ compliance.

Why it works: While we’d like to believe that our sitting justices are superior beacons of morality, the mere fact of this conversation suggests that they are not.  And there’s no reason for this to be so, given that all other federal judges are bound by an enforceable code of conduct.  Biden’s plan calls for an impartial enforcement mechanism which would require the justices to disclose gifts, refrain from public political activity, and recuse themselves from cases of personal interest—all of which speaks directly to their efficacy on the Court.  Given that the code would be uniformly applied and supervised by an independent body, this seems to be among the more reasonable responses to Court reform.

Why it doesn’t: No such enforcement mechanism currently exists, and to build one from the ground up takes time.  (Currently, the Court’s ethics code is overseen by the Judicial Conference, which is led by the Chief Justice.  No separation of powers here, folks!)  Moreover, any such mechanism rooted in an existing political structure is unlikely to affect the total impartiality required in such sensitive cases.  You also have to wonder what happens to a sitting justice if/when they are investigated—are they suspended during active investigations? Is there a mandatory review of all prior decisions if they are found to have violated the code? 

There are other options, of course.  Many have advocated for the expansion of the Court, in an effort to restore balance beyond the current 6-3 split.  Personally, I’m not a fan, in part because it sets a precedent whereby each president could simply add additional seats to pack the Court in their favor.  There’s such a thing as too many voices in the room, and I can’t conceive of a functional Court with 45 justices.  

Another option is mandatory Senate review, as recently recommended by Michael Conway, (former counsel of the House Judiciary Committee).  Under this system, justices would be required to return to the Senate every 10 years for a vote to determine if they continue to serve or are dismissed from the bench.  It’s oriented towards accountability, but 10 years seems like an extremely long time for the justices to go unchecked, and could easily devolve into another political ploy whereby justices are supported based on their perceived political leanings.

To be fair, this is an extremely condensed discussion of an inherently complex issue, but the bottom line is clear: our current Court is not functioning as intended, and the time to act is now.  In the words of Thurgood Marshall, “Where you see wrong or inequality or injustice, speak out, because this is your country.  This is your democracy.  Make it.  Protect it.  Pass it on.”

Yes, sir.