The Devil’s In The Details, But…

I've unlocked my "One First" bonus post from July 18 on President Biden's proposed #SCOTUS reforms—and why these reforms are not only the wrong ideas at the wrong time, but might actually set *back* the growing efforts to hold the Court more accountable:https://t.co/3L9ZiN38yg

— Steve Vladeck (@steve_vladeck) July 29, 2024

Professor Vladeck has issues with Biden’s broadly sketched proposals for reforming the Supreme Court.

Let’s start with term limits. Under Article III, Section 1 of the Constitution, the justices “shall hold their Offices during good Behaviour.” The critical point for constitutional purposes is that the nature and duties of the “office” the justices hold are largely defined by Congress. Thus, Congress had the power, from 1789 until 1911, to include circuit-riding as one of the functions of the office. My own view is that Congress can also define the office so that a justice hears merits cases for a fixed period of time, so long as they are given other duties thereafter—so that term limits can be imposed by statute, and not just by constitutional amendment. The problem is that, under an old but consistently followed series of cases, any “non-germane” changes to the nature of an office must be prospective (i.e., only apply to future officeholders), lest Congress use this power as an end-run around the Appointments Clause (by, e.g., giving confirmed officeholders different duties than what they were confirmed to do). So, in my view, statutory term limits would be constitutional only if they went into effect starting with the next justice. That means that, 30-40 years from now, when the last of the current justices leaves the Court, we’d have nine justices with term limits—but not tomorrow. In short, it could work only as a long-term reform, not a short- (or even medium-)term one.

That’s a very valid point, which only means we can’t remake the Supreme Court in a few years.  That’s not the same thing as saying there aren’t good reasons to try, or even better routes to how.

Obviously, I don’t feel like paraphrasing. 

As for a code of conduct, I’ve written about this before, but to me, far more important than the ethics and financial disclosure rules that apply to the justices is how those rules are to be enforced. And although the Post reporting refers to an “enforceable ethics code,” I don’t quite understand how that could be achieved consistent with the Constitution. If anyone other than the justices is given the power to discipline the Court’s members for violations of these rules, we’d no longer have “one Supreme Court,” as Article III, Section 1 says we must; we’d have two. Instead, I’m a firm believer that the way to cut this particular Gordian knot is through the creation of an Article III Inspector General without disciplinary authority over the justices, but with a host of monitoring and reporting obligations that, if structured correctly, ought to create exactly the right kinds of incentives for the justices to comply with the rules already on the books (versus where we are today). An “A3IG” is also long overdue for the lower courts (which continue to get into all kinds of inexplicable trouble), so taking that route versus a new substantive code would have salutary downstream effects, too.

Again, the devil is in the details; which aren’t available at this stage. On the next one I disagree almost completely:

As for a constitutional amendment to override the Trump immunity ruling, why just that one? What about an amendment to overrule Rucho and reaffirm that the federal courts can adjudicate severe partisan gerrymandering? Or an amendment to overrule Citizens United and allow Congress to meaningfully limit the money in our elections? Or an amendment to overrule Dobbs? All of these have the exact same chance of getting two-thirds of the House and Senate to approve them (0.0%), to say nothing of three-fourths of the states.

The visceral nature of presidential immunity (and/or Dobbs) may change the political outcome in November, which changes the political calculus in the states, too. Besides: no guts, no glory. Basically, the good professor is on much stronger ground when he’s discussing what the law requires. The way things are going, the people may well decide they need to take the law of the land back into their own hands. The support for the Court is at an historic low, after all. Give the electorate the idea their vote might lead to an amendment, and who knows what might happen? I’d leave this one to the political knowledge of Joe Biden.

The rest of the professor’s argument is no better than that last quoted paragraph: law professors (honestly the only members of the bar more ignored/disrespected by the public than any other segment of the Bar) should have been listened to before (or now); better proposals available ( I’m not sure even the details of Biden’s proposals are known); Biden’s ideas are DOA; etc. But Professor Vladeck (here more than ever) is operating in the (VERY) rarified atmosphere of law school professors, a place even Supreme Court justices rarely give a nod to (the most famous footnote in legal history is a citation to a law review article in Roe. That example is never cited for why law professors are the Unacknowledged legislators of the world. Quite the opposite, in fact. It’s the exception that proves the rule.). 

Biden is operating in the realm of politics and D.C. He’s trying to start a conversation, not finish one. His proposals have no chance of becoming legislation, because of the legislative calendar. But they may be an inspiring issue in the election coming up.

JFK was promoting a Civil Rights Act when he died. LBJ pushed it through largely because of the shock of JFK’s death. Biden, almost as shockingly, stepped away from pursuing re-election. Kamala Harris (if Trump wins these ideas are certainly dead) could well promote Court reform (if not these reforms specifically) in the memory of the goodwill Biden engendered by his bold and historic decision. Especially if that bold and historic decision secures any kind of blue wave in November at all.

Certainly better to light a candle than curse the darkness, no? 🕯️