US President Joe Biden does not want to sit idly by in the face of the conservative revolution undertaken by the US Supreme Court. After three high-intensity judicial courses in which judges have eliminated the constitutional right to abortion, breached the wall that separates Church and State, expanded gun rights and granted broad immunity to Donald Trump, among other controversial rulings, Biden is planning reform proposals for the Supreme Court, according to US media reports. Among these reforms under consideration is the elimination of lifetime mandates for judges and the establishment of a binding code of ethics.
This is a political gesture, made less than four months before the elections, since the Democrats do not have a majority in Congress to pass the laws that would be necessary to implement these measures.
In his round of calls with groups of congressmen to reaffirm his candidacy for reelection, the president spoke on Saturday by teleconference with the most leftist faction of his parliamentarians and gave them the following message, according to a transcript released by The Washington Post and by the Associated Press: “I’m going to need your help on the Supreme Court, because I’m about to introduce – I don’t want to announce this prematurely – a major initiative to limit the Court. I’ve been working with constitutional experts for the last three months and I need help,” Biden said.
Lifetime terms guarantee the Supreme Court’s conservative majority for a long time. The two oldest justices are Clarence Thomas, 76, and Samuel Alito, 74. They are also two justices who have been rocked by scandals, although they have declined to recuse themselves from cases where they might be tainted by conflicts of interest. The Supreme Court’s current ethics code has no coercive power.
Putting judges’ terms on hold would require legal reform, and Democrats cannot push it through on their own. Republicans have a majority in the House of Representatives, and Democrats’ majority in the Senate is not enough to push through the legislative projects.
Presidential immunity
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Biden is also considering calling for a constitutional amendment to remove the broad immunity granted to presidents by the Supreme Court in a recent ruling, largely in favor of Donald Trump, who is being impeached for his attempts to subvert the outcome of the 2020 election. Such an amendment would be even more difficult to push through.
The straw that seems to have broken Biden’s back was precisely that ruling on the former Republican president’s immunity, which he described as a “dangerous precedent.” “This nation was founded on the principle that in America there are no kings. We are all, all equal before the law. No one, no one is above the law. Not even the president of the United States,” he said then. “Today’s decision almost certainly means that there are virtually no limits to what a president can do,” Biden warned. “I know that I will respect the limits of presidential power as I have for the last three and a half years, but any president, including Donald Trump, will now be free to break the law,” he added.
“Today’s decision continues the Court’s assault over the past several years on a wide range of our nation’s long-standing legal principles, from the rollback of voting rights and civil rights to the elimination of a woman’s right to choose, to today’s decision undermining the rule of law in this nation,” Biden said that same day.
About two in three Americans support term limits or a mandatory retirement age for Supreme Court justices, according to a 2022 Associated Press-NORC Center for Public Affairs Research poll. According to the June poll on the judiciary, trust remains low, with four in 10 Americans saying they have little trust in the people who run the Supreme Court. The poll found that seven in 10 Americans think the high court’s justices are influenced by ideology, while just three in 10 think the justices are more likely to provide an independent check on other branches of government by being fair and impartial.
Ideological reasons
George Washington selected the first Supreme Court justices in 1789 along geographic lines, but the standard practice is to select justices on ideological grounds. Although Republicans have only won the popular vote in a presidential election since 1992 (in 2004 under George W. Bush), the Supreme Court has six conservative justices to three liberals. Some Democrats believe that Republicans have “stolen” two appointments from them. When conservative Justice Antonin Scalia died in February 2016, Republicans blocked the appointment of Merrick Garland, a moderate.
After winning the election in November of that year, Trump chose the conservative Neil Gorsuch. The Democrats tried to block the vote in the Senate, but the Republicans changed the rules of the game and Gorsuch was confirmed. After the retirement of the moderate Anthony Kennedy, Trump appointed Brett Kavanaugh, also a conservative. The reversal was completed with the death from cancer of the legendary progressive judge Ruth Bader Ginsburg on September 18, 2020, just a few weeks before the presidential election between Trump and Biden. Trump appointed the fervent Catholic Amy Coney Barrett, who was confirmed by the Senate just a week before the presidential election. With this, the most conservative Supreme Court in decades was cemented.
In 2022, following rulings on abortion, climate change, firearms, religion in schools, mandatory vaccination of workers against Covid, the role of federal agencies and immigration, some Democrats have already called for action. New York Congresswoman Alexandria Ocasio-Cortez called for the impeachmentGorsuch and Kavanaugh for “lying under oath” because they said in their testimony that abortion was a settled issue.
Senator Elizabeth Warren has raised the possibility of expanding the Supreme Court. Article III of the US Constitution does not specify its composition. The Supreme Court began its journey in New York, then the capital, in early 1790, with six members. It changed size several times throughout the 19th century until the Judiciary Act of 1869 set it at nine, a size that has remained the same for more than a century and a half. Democrat Franklin D. Roosevelt tried to expand it in 1937 and was roundly opposed, even within his own party. Some Democratic congressmen introduced a bill in April 2021 to increase its size to 13 members, but Democratic House Speaker Nancy Pelosi refused to bring the proposal to the floor and Joe Biden himself rejected that shortcut.
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