Biden Is Unseriously Taking on Serious Supreme Court Reform

In an op-ed in today’s Washington Post, President Joe Biden makes the case for three “bold” Supreme Court laws that are good ideas but will never happen so long as this is how the Democrats lazily pitch large-scale changes. One would think if you were genuinely trying to create real reform, you would do it in a more organized manner than writing a blog to WaPo out of nowhere a few months before the election.

Everything the Democrats have done this year has a “never went to class, never read the book, now cramming the night before the final” vibe to it, and this proposal from Biden is the pièce de résistance of the White House’s anti-effort to run a serious political campaign right up until everyone got coconut-pilled.

First, I am calling for a constitutional amendment called the No One Is Above the Law Amendment. It would make clear that there is no immunity for crimes a former president committed while in office.

Great idea! Now what’s your plan to get two-thirds of Congress and/or two-thirds of the state legislatures to get this done? Do you have anyone in Congress sponsoring this amendment? Are there any state legislatures who will take up this fight? Who all is helping with this humongous effort to do something that has yet to be done this century?

Kamala Harris said she supports these reforms Biden will announce at an event tonight, and if she is serious about passing them, it will require an immense amount of political groundwork on her part that Joe Biden’s White House has simply not done. This is a very Trumpy way to roll this out, trying to rule by presidential fiat then hoping that someone else does the hard work for him.

Next up in the POTUS blog is a slightly more achievable goal, albeit still containing the same “never went to class” vibe of this whole mess, as Biden calls for 18-year term limits for Supreme Court justices and proposes replacing one every two years. He cites presidential term limits as his reasoning to have “the same” laws for SCOTUS justices…which exist due to the 22nd Amendment. There are theoretically other ways to achieve this measure, like through Congress, but tracing the president’s logic leads us again to the most difficult item to pass in our political system.

This is not the kind of thing you can just haphazardly say “hey someone should do something about this” and hope for the best. There’s a reason we haven’t passed a constitutional amendment in thirty-two years, and it was a relatively anodyne one about congressional salaries: this is a really hard thing to get done!

His last reform is the most realistic notion, but presented alongside two big asks with seemingly no plan to accomplish them, it loses its luster.

Third, I’m calling for a binding code of conduct for the Supreme Court. This is common sense. The court’s current voluntary ethics code is weak and self-enforced. Justices should be required 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. Every other federal judge is bound by an enforceable code of conduct, and there is no reason for the Supreme Court to be exempt.

If we were at the beginning of Biden’s presidency, this op-ed would take on an entirely different tone as the starting point of a multi-year effort, and I would not derisively label it a blog. The entire basis for this push for Court reform comes from Biden’s commission to study structural changes to the Court, which submitted its report to him in 2021. That this is coming out now indicates this was not a serious priority for the Biden-Harris administration, and they view it more as a campaign talking point than a serious undertaking.

Homer Simpson’s promise to hire sanitation workers to do all the literal dirty work Springfield doesn’t want to do is a pitch more grounded in reality than this one is presently. Maybe at the announcement tonight there will be more substance to it, but the fact that this op-ed written by a man who loves Congress more than anything contains zero references to Congress does not give me comfort that there is an actual plan in place to achieve this progress.

It is just fundamentally unserious to toss out an idea for a constitutional amendment (or two) seemingly out of nowhere on your way out, especially when the proposal underlying it has been sitting on your desk for three years. What Biden published today and was later backed by Harris is no different from a kid running for student council president promising that he’ll get the school to give out free candy for lunch every day. At least tell me your plan for how Congress is going to pass this (even if it’s not realistic!) or stop promising me free candy. Just give me some indication there is an actual plan here.

A real effort for large-scale Court reform would have started much sooner, knowing that the longer one waits to mount the largest challenge in politics, the longer it will take to pass. Barring some unseen and immense shift in the electorate, there is surely no way they would pass either proposed constitutional amendment this decade. The Democrats could win every single Senate race this year and still not have the majority needed to pass this constitutional overhaul. In the best-case scenario that is wholly unrealistic because just hanging on to the Senate this year would be a huge victory for the Dems, the earliest that a constitutional amendment could be passed without Republican votes is in 2027.

Why weren’t we trying to build support for this after Biden was elected and we were getting a piece a week about a new billionaire buying a Supreme Court justice? Why did we have to wait until three months out from the election to try to radically transform the Court’s relationship with the government? It is nice seeing the Overton Window move on Supreme Court reform, but it means nothing if it doesn’t translate to actual changes, and actually could be counter-productive to the effort if it fails by demonstrating yet again that no one should believe anything they are told by a politician campaigning for an election.

Given that these proposals have been around since 2021, it is hard to look at this as anything other than a panicked attempt to run PR for a sundowning presidency who is now coming to grips with the fact that the major domestic policy victories passed in its first half are being overshadowed by the genocide defining its legacy in the second half. If this Supreme Court reform does pass at some point, it will be because far more serious political operatives than the ones currently running the White House did it.