Since the President recently proposed a major overhaul of the Supreme Court, feathers have been flying. Each proposal is unlikely to be accepted for a few reasons, but more than that, they defy the Constitution’s separation of powers clause:
The Framers’ experience with the British monarchy informed their belief that concentrating distinct governmental powers in a single entity would subject the nation’s people to arbitrary and oppressive government action. Thus, in order to preserve individual liberty, the Framers sought to ensure that a separate and independent branch of the Federal Government would exercise each of government’s three basic functions: legislative, executive, and judicial.
Each branch is given limited oversight of the others, but those powers are spelled out explicitly. For example, the Congress cannot veto the President’s removing an Executive officer, nor can the President usurp the lawmaking powers of Congress.
Unconstitutional Proposals
The proposals that have been made include the following:
(1) No president can have absolute immunity from criminal prosecution. This was proposed in reaction to a SCOTUS ruling that the President may have immunity from certain acts he has taken, to ensure that he is not accused of crimes in pursuing the requirements of his office. But immunity will have to be determined based on the action taken, and doesn’t provide absolute immunity.
(2) The President proposed term limits, where a new Justice would be appointed for 18 years every two years. But term limits, according to a number of experts, could only be approved by Constitutional amendment:
‘I strongly support 18-year term limits for Supreme Court justices, but I believe that this would require a constitutional amendment, especially if applied to current justices,’ said UC Berkeley Law School Dean Erwin Chemerinsky.
Polls show that most Americans support the idea of limiting the terms of Supreme Court justices. It is particularly popular with many Democrats and progressives, who seek to limit the power of the court’s current 6-3 conservative majority. But amending the Constitution requires the support of two-thirds of the House and Senate and three-quarters of the states.
A new amendment is unlikely to be passed during President Biden’s presidency.
(3) And finally, instituting a code of ethics for the Supreme Court. In the past few years, Justices Thomas and Alito have been challenged by Democrats in Congress for their actions. The most extreme, according to the Representatives, were gifts that Justice Thomas received from a wealthy friend, Harlan Crow:
Crow has defended the gifts, saying he and Thomas have been friends for 27 years—and there is nothing improper about their friendship.
‘A lot of people that have opinions about this seem to think that there’s something wrong with this friendship,’ he told the Dallas Morning News. ‘You know, it’s possible that people are just really friends. It blows my mind that people assume that because Clarence Thomas has friends, that those friends have an angle.’
Fortunately, there is no law against having wealthy friends, nor against receiving gifts from
friends, nor has Mr. Crow had any cases tried before the Supreme Court; if he did, I’m quite certain that Justice Thomas would recuse himself.
The Democrats are thinking that there must be something irregular going on, even though the two men have known each other for such a long time. For that reason, since it is possible that a person could behave inappropriately without a code of ethics, the legislators are assuming they must have. Even without a code of ethics, there is a still a code of conduct which the Court created in November 2023.
But perhaps the most serious outcome of the President or Congress requiring a code of ethics for the Court is that it would be a serious violation of the separation of powers. Nothing in the Constitution gives them the power to create or enforce a code of ethics.
Cynical Ploy?
When all is said and done, one writer suggested the intentions behind this proposal:
It’s difficult to sit here and make substantive arguments against the Democrats’ Supreme Court ‘reform’ proposal, since everyone knows it’s just a cynical ploy to delegitimize both the court and the Constitution. . .
One might argue it’s all just an election gimmick, since the chances of the reform package passing are close to nil. That’s not the point. The left has normalized the notion that the Supreme Court is both illegitimate and corrupt if it fails to bend to the will of partisans.
It certainly appears that way.
Convention of States is also interested in exploring term limits but why stop at SCOTUS? Do we really need our elected officials in Congress to spend 40 or more years amassing personal wealth while brokering power in D.C.? What about consequential evaluations for bureaucrats who are protected by a union that is essentially their employer?
Citizens interested in potential amendments that might come out of an Article V Convention can read more here>>
Besides term limits, COS also cares about fiscal restraint and reducing the size and scope of federal jurisdiction. If you believe this government was intended to be "of the people, by the people, and for the people," then it's time to step up and help. You will be surprised what one person can do when aligned with kindred spirits.
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