Were President Joe Biden not a lame duck, his attack on the Supreme Court would be more worrying. It’ll go nowhere but it is nevertheless another stain on his thoroughly soiled career, undertaken in a last desperate partisan gasp as the Democratic Party shoves him ruthlessly aside.
House Speaker Mike Johnson (R-LA) called the president’s plan “dead on arrival,” to which Biden responded with now-characteristic clumsiness, “I think that’s what he is.” This was especially awkward given that former President Donald Trump had been shot by a would-be assassin two weeks earlier.
The substance of Biden’s proposals is just as bad as his rhetoric. He falsely claimed that a recent Supreme Court decision “means there are virtually no limits on what a president can do.” Anyone who can read knows the court did no such thing. The majority decision backed Youngstown Sheet & Tube Co. v. Sawyer, in which the Supreme Court blocked President Harry Truman’s seizure of the nation’s steel mills during the Korean War. That decision held that presidents may not act outside their legal authority and that they could be blocked by courts if they tried. That case is still good law, no matter what Biden says.
Second, Biden called for 18-year term limits for all Supreme Court justices. It is unclear if he wants a constitutional amendment for this item, but he’ll need one. The Constitution is clear that Supreme Court justices are to have life tenure, and legislation that tries to skirt this by labeling some justices “Senior Justice” won’t pass constitutional muster. Federalist No. 78 is clear about the “essential” nature of the “permanent tenure of judicial offices” in maintaining a functional balance in the separation of powers. No “senior status” gimmick is compatible with the Constitution’s original design.
Finally, Biden proposes a “binding code of conduct” for the Supreme Court, calling the current code weak since it is “self-enforced.” But here again, the president’s wishes smash up against the Constitution. The judicial branch is free to design and enforce its own ethics guidelines and indeed has done so. Parties can and do file ethics complaints against federal judges which are then heard by other federal judges and could, in theory, make it all the way to the Supreme Court. But the Supreme Court is already the highest court. Congress does not have the constitutional authority to give lower courts power to render judgments on the ethics or recusal decisions of Supreme Court justices.
It would be bad policy if they did. More than 1,000 complaints have been filed against U.S. District Judge Aileen Cannon for her handling of Trump’s classified documents case. These are mostly, perhaps entirely, scurrilous political attacks. Opening Supreme Court justices to similar campaigns would expand to an industrial scale the Left’s campaign of harassment against justices who decide cases on their constitutional merits rather than in line with a “progressive” agenda. Biden’s proposal would do nothing to improve the transparency of justice’s ethical and recusal decisions.
As he noted in making the case for his Supreme Court makeover, before becoming vice president, he had been a senator for 36 years, including a stint as chairman and ranking member of the Senate Judiciary Committee. Where was the urgency for remaking the Supreme Court then? There was none because in those days, the court made more ideologically activist decisions that Biden and his fellow left-wingers liked.
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The Democratic Party and wider Left are now attacking the Supreme Court only because they want to regain control of it. When it was inventing rights to abortion, for example, Democrats loved the Supreme Court’s unmoored ability and willingness to make new law. But now that conservatives are returning the court to its proper limits, Democrats want to weaken it and undermine the Constitution.
Biden is scratching around for relevance now that he is being pushed out in favor of Vice President Kamala Harris. He has chosen to latch on to a completely partisan issue that has no hope of passing with just three months before Election Day. He could have chosen to leave office with dignity, but dignity is not something one has ever been able to expect from Joe Biden.