If Democracy Needs Saving, this is the Sort of Medicine that will Kill the Patient
President Biden and Senator Majority Leader Chuck Schumer recently announced plans to save democracy for future generations by waging war on the United States Supreme Court. Their proposals would erode constitutional separation of powers by freeing rogue prosecutors to blackmail Presidents with threats of lawfare and rendering the Court a vassal state of the political branches.
On August 1, Schumer introduced the curiously titled “No Kings Act.” The bill would strip the President of immunity from criminal prosecution for official acts, overturning the Supreme Court’s recent decision in Trump v. United States. The bill also would strip the Supreme Court of appellate jurisdiction to review its provisions.
Schumer’s bill comes on the heels of President Biden’s announcement in July of what he has called “a bold plan to reform the Supreme Court and ensure that no President is above the law.” Biden’s plan contains two major proposed overhauls to the Court. First, it calls for Congress to pass a law imposing 18-year term limits on each Justice, after which they would forcibly be placed into semi-retirement as “senior” judges with limited portfolios. Second, it calls on Congress to impose “binding, enforceable conduct and ethics rules that require Justices to disclose gifts, refrain from public political activity, and recuse themselves from cases in which they or their spouses have financial or other conflicts of interest.” For good measure, Biden’s plan also calls for a constitutional amendment that would eliminate Presidential immunity. Vice President Kamala Harris has since embraced Biden’s proposal.
Why have these leading public figures decided to launch this all-out assault on the Supreme Court? Schumer says his bill is needed because “the Supreme Court threw out centuries of precedent and anointed Trump and subsequent presidents as kings above the law.” Biden claims his plan is necessary because citizens are suffering a “crisis of confidence in America’s democratic institutions” caused in part by the Court’s decision in Dobbs v. Jackson Women’s Health that overturned “long-established precedents protecting civil rights” like abortion. And the “recent ethics scandals” at the Court. Harris cites those same reasons as driving a “clear crisis of confidence facing the Supreme Court.”
The difficulty with those rationales is that none of them is credible.
The Court held in Trump that Presidents enjoy only presumptive immunity from prosecution for official acts, but no immunity for unofficial acts. That decision protects Presidents acting in their official capacity from being blackmailed by rogue prosecutors seeking to influence national policy. But it does not immunize Presidents against wantonly unlawful acts that lie outside their official duties. And the Constitution itself, along with long-established norms and institutional constraints, substantially checks official executive actions. Nothing the Court did in Trump even remotely “anoints” Presidents as absolute monarchs. Moreover, pointing to Dobbs as an example of judicial adventurism is even more absurd. Dobbs ended the illegitimate reign of Roe v. Wade, which invented a constitutional “right” to abortion at the expense of elected lawmakers’ power to regulate abortion.
Contrary to Schumer, Biden, and Harris’ protestations, both Dobbs and Trump uphold the constitutional separation of powers. Those decisions disagree, however, with the radical Left’s political agenda to maximize abortion-on-demand and to wage unremitting lawfare against a political rival. So, naturally, the Court must be reined in.
The calls for terms limits and a binding ethics code for Justices fare even worse. Article III, Section 1 of the Constitution provides that Justices have lifetime appointments (i.e., shall serve during “good behavior”). Removing a Justice from any active role on the Court after 18 years is simply incompatible with that requirement. It’s little wonder, then, that several members of Biden’s own President Commission on the Supreme Court raised serious doubts about its constitutionality.
Moreover, beyond its obvious legal shortcomings, the implementation of term limits could increase partisanship around the Court and compromise the independence of the judiciary. Biden’s proposal would force one Justice off the Court every two years. A 2022 study found this cadence may, in turn, increase the likelihood of “strategic” retirements by Justices facing imminent ouster to ensure their successors are appointed by a “friendly” Justice. And conversely, it may goad the majority party in the Senate to delay confirmations to “stack” appointments for a future day if the current President does not share their political leanings. In addition, because Justices forced into retirement are likely to seek work after their time on the Court, they may face pressure—real or perceived—to please future political patrons.
Biden’s proposed binding conduct and ethics code also raises serious legal and institutional concerns. While it’s true that Congress does have some authority to regulate the Court, separation of powers precludes Congress from interfering with the Court’s core judicial functions. Many legal scholars agree that setting and enforcing recusal rules is just such a core judicial function. Moreover, Biden’s disclosure rules and bar on political advocacy will open the Court to endless scrutiny and accusations of unethical conduct as partisans and litigants seek to influence the Court by raising borderline and even frivolous arguments on these counts. This invited attack on the legitimacy of the Court’s operations also raises serious separation of powers concerns.
Finally, complaints about “ethical lapses” are driven in large part by the media’s and the radical Left’s all-out assault on conservative Justices following the decision in Dobbs—an assault transparently aimed at undermining public confidence in the judiciary and pressuring members of the Court to bend to the will of elected politicians. Politicians calling for “ethics reform” point to no evidence that individual Justices have been improperly motivated by supposed ethical lapses. Nonetheless, the “solution” on offer for this manufactured problem is to pass laws that subject the Court to the political branches.
Writing in 1788, James Madison penned Federalist 47 in which he warned, “The accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” Expounding on this, Madison observed that while various branches of government may check each other—the President can appoint federal judges and veto legislation, and Congress has the power to impeach—they cannot subsume the “whole power of another department.” That, Madison warned, would subvert the “fundamental principles of a free constitution.”
Schumer and Biden’s proposals don’t uphold the rule of law and separation of powers. They undermine them by launching a hostile political takeover of the Court. Congress, and the American public, should resist these shortsighted efforts to fundamentally rewrite our Constitution. Democracy will be just fine without them.
Image Credit: Unsplash
