Creators Syndicate
July 30, 2024
The first paragraph of this week's Washington Post
op-ed by President Joe Biden declared, "This nation was founded on a
simple yet profound principle: No one is above the law. Not the president of
the United States. Not a justice on the Supreme Court of the United States. No
one."
President Biden's declaration is a condemnation of the
United State Supreme Court's recent decisions and the conduct of some of its
members. This may be the most aggressive effort to reform the court in nearly a
century.
President Franklin D. Roosevelt wanted to implement a
curious age formula for expanding the court. The Judicial Procedures Reform
Bill of 1937, commonly referred to as the "court-packing plan," was
Roosevelt's attempt to appoint up to six additional justices to the Supreme
Court for every justice older than 70 years, 6 months, who had served 10 years
or more.
According to History.com, Roosevelt's plan was
"seen as a political ploy to change the court for favorable rulings on his
New Deal legislation." Roosevelt's court-packing plan failed.
Biden's plan, according to Newsweek, includes a
constitutional amendment ensuring presidents have no immunity for crimes
committed while in office, introducing term limits for Supreme Court justices,
and establishing a "binding" code of ethics for the court.
The president's concern is the result of the court's
recent decision granting presidents broad immunity from prosecution for crimes
they commit in office. Biden said that the ruling, which was made in favor of
former President Donald Trump's criminal prosecution for election interference,
provides a president expansive immunity from criminal conduct while in office.
Biden also proposed term limits for justices, ensuring
that the court's membership changes with some regularity, rather than the
current system, in which the opportunity to nominate justices can be
unpredictable.
It is ridiculous that federal judges do not have a
mandatory retirement age. Twelve percent of active federal judges are over 80
years of age, and about a dozen judges over the age of 90 are still working. As
it is, a Supreme Court justice stays on the bench for life.
According to the National Center for State Courts, 32
states plus the District of Columbia have a retirement age for judges; most use
70 as the threshold, and the remaining states use either 72, 74, 75, or in the
case of Vermont, 90.
Biden said that he supports an updated system in which
the president "would appoint a justice every two years to spend 18 years
in active service on the Supreme Court."
The president also lamented that the court has been
"mired in a crisis of ethics." The court's approval rating is at an
all-time low as the court deals with ethical indiscretions by longtime members
of the court.
I wrote here recently, "Can a justice who had a
flag flying over his home that symbolized the false narrative that a
president's reelection was stolen and an attack on the Capitol was essential to
'stop the steal,' avoid even the appearance of impropriety?"
The rules of conduct that govern every judge in the
United States do not apply to the Supreme Court. When the flag flew over
Justice Samuel Alito's home, there were no codified rules of conduct for
Supreme Court justices.
Supreme Court Justice Clarence Thomas accepted
millions of dollars' worth of gifts over his past two decades on the bench,
"a total nearly 10 times the value of all gifts received by his fellow
justices during the same time," according to a CNBC report.
Biden's proposal would require justices to disclose
gifts, refrain from public political activity, and recuse themselves from cases
in which they or their spouses have conflicts of interest.
The newly minted lame-duck president is not sitting
back and cruising into the sunset. This may be some of the most important work
that Biden does before he leaves office.
Matthew T. Mangino is of counsel with Luxenberg,
Garbett, Kelly & George P.C. His book "The Executioner's Toll,
2010" was released by McFarland Publishing. You can reach him at
www.mattmangino.com and follow him on Twitter @MatthewTMangino.
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