Sadly, in the waning days of his presidency, Joe Biden has belatedly thrown in with those in his party who want to bring about changes, not by the traditional resort to the established democratic processes of political activity, elections, legislation and litigation, but rather through modifying the system itself. Thus, with Democrats apoplectic over recent decisions of the U.S. Supreme Court, particularly on abortion and presidential immunity, President Biden has proposed measures that would weaken the Court’s independence and role as a co-equal branch of the federal government together with the Congress and the President.
So, in an op-ed by Mr. Biden on Monday in The Washington Post – which he expanded upon in a speech later in the day at an event in Austin, Texas – the President summarized what he saw as needed fixing and his proposed solutions.
… [T]he Supreme Court’s 6-3 decision on July 1 to grant presidents broad immunity from prosecution for crimes they commit in office means there are virtually no limits on what a president can do. The only limits will be those that are self-imposed by the person occupying the Oval Office….
… On top of dangerous and extreme decisions that overturn settled legal precedents – including Roe v. Wade – the Court is mired in a crisis of ethics…. For example, undisclosed gifts to justices with interests in cases before the Court…. raise legitimate questions about the Court’s impartiality.
As for his prescriptions he first called for “a constitutional amendment …[that] would make clear that there is no immunity for crimes former president committed while in office….”
Secondly, he called for term limits for Justices “that would make timing for court nominations more predictable and less arbitrary. Term limits would help ensure that the Court’s membership changes with some regularity. It would reduce the chance that any single presidency radically alters the makeup of the Court for years to come.”
And thirdly, he called for “a binding code of conduct for the Supreme Court…,” “The Court’s current voluntary ethics code,” he said, “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.”
Sounds good – even downright patriotic. But the problem is the ferment which is rooted in Democrats chafing under the current Conservative Court majority and an impatience for working for change in the normal course. However, imposed restrictions on the Court and the Justices would create opportunities for exploitation and therefore pressure – even if ultimately unavailing. Just ask former President Donald Trump about how that works.
We should not give in to those who want to replace the system over dissatisfaction with its work product. They should wait their turn.
