Alexi McCammond: Republican candidates have long used the Supreme Court as an issue. Should President Biden embrace some (any!) court reform before the 2024 election?
Ruth Marcus: It might be politically wise for Biden to embrace something, but I’m not sure it will happen. I’m a big supporter of term limits for judges, but this would probably, but not certainly, require a constitutional amendment.
Alexi: The good news is that campaign promises can (sometimes) be made without a realistic plan to deliver on them, and I think this is one of those elections, which would be politically advantageous not only for Biden, but for the lower-ranking Democratic Senate candidates as well.
Megan McArdle: The obvious problem with court reform is that most people are interested in it solely for partisan or ideological reasons. Of course, there are exceptions, like Ruth.
Loose: To be clear, I am against expanding the court. That would make the biggest immediate difference. The political problem for the president is that he doesn’t support the measure, but his allies on the left do.
Alexi: Why are you against expanding the courthouse? I’m interested in the idea and I’m like, “Let’s see what happens.”
Loose: It would be destroying the village in order to save it, which would set off a cycle of retaliatory expansion, forever undermining the institution. “Let’s see what happens” is, with all due respect, too flippant an approach to this serious problem.
Alexi: I regret that the Trump era has led me to adopt a frivolous and sometimes non-serious attitude towards serious matters.
Loose: Perhaps we should step back and ask ourselves: What is the problem we are trying to solve here? Is it that we (or Biden and the Democrats) don’t like the Supreme Court’s decisions? Or is it that we’re concerned about the ethical behavior of the justices? Each of these requires a different potential solution, and neither is easy. In the Luciverse, we would be addressing two problems with the Supreme Court: strengthening ethics rules and enforcement, and fixing the really fundamental structural problem of a Supreme Court whose membership is determined by the contingency of when justices retire.
Loose: If every president was guaranteed two justices (like term limits are), the Supreme Court would automatically be more in line with the public’s opinion, which would be an improvement. If I were Biden, I would push for term limits legislation and see how it goes.
Megan: The ethical questions are themselves the product of a concerted campaign to delegitimize conservative judges. No one raised an eyebrow when Ruth Bader Ginsburg accepted lavish trips to Israel or publicly criticized Donald Trump. We don’t know what secrets lurk in the closets of Democratic-appointed judges because no one has put much effort into investigating them. Yet.
Loose: I really have to disagree with Meghan on that point.
Loose: I have no doubt that some of the justices have undermined the legitimacy of the decision because of ethical lapses on the part of the conservative justices. I also acknowledge that there have been lapses and questionable behavior on the part of the liberal justices. I thought that Justice Ginsburg’s criticism of Trump was extremely unwise, and I said so at the time. She has apologized for it, but that goes beyond the response of the conservative justices.
Megan: Again, Ruth, you are an honorable exception, but I think for most people this is tactical, so bear with me.
Loose: It is also true that, to my knowledge, no liberal justice has shown a willingness to accept the kind of large donations that Justices Clarence Thomas and, to a much lesser extent, Samuel Alito have received. Justice Thomas’ gifts, including paying for his nephew’s grandson’s tuition and forgiving the mortgage on a luxury motor coach, are truly egregious and, to me and many others, have nothing to do with his ideology.
Megan: I think the courts should have stricter ethical rules, but I don’t actually think this influenced Thomas’ decision.
Alexi: How do you understand and explain the Republican reluctance to strengthen ethics rules, especially when, as we have seen, liberal judges also engage in unethical behavior?
Megan: I mean, think of Congress’ inability to stop its members from insider trading. No one is in favor of strict scrutiny of themselves.
Loose: I would like to suggest an approach that I agree would be difficult to implement, but which could be very effective and interesting: a court inspector. Judges would likely baulk at the idea, but they could decide to do it themselves. It would not infringe on their institutional autonomy, but it would be a way to discover facts and assure the public of ethical behavior.
Megan: Everyone is spending too much time trying to change the composition of the bench rather than reconsidering the idea that the Court should strike down law after law. What’s needed is a truce where both sides have more deference to the legislature.
Loose: With the way the Supreme Court has been misappropriated — Senator Mitch McConnell blocked the replacement of Antonin Scalia until President Trump took office, then rushed to confirm Amy Coney Barrett before Trump left office — there will be complaints about the makeup of the Court. And rightly so.
Megan: The problem with retaliation is that it can easily escalate into a death spiral, and we’re in exactly that situation right now: every escalation is truly worse than the last, so the losing side always genuinely convinces themselves that they’re the victim and conveniently forgets all the times their side escalated.
Alexi: Personally, I think Democrats need to break with tradition more, but again, I recognize that this may be too flippant for a serious issue.
Megan: In the interest of bipartisan cooperation, I would be much happier if Ruth were setting the rules for the Supreme Court than we have now.
Loose: We bring you the Ruthiverse!
🙅🏽♀️🙅🏽♀️🙅🏽♀️
Consider this proposal, published in Politico magazine by Scott Bodary, an assistant professor of political science at Gettysburg College, and Benjamin Pontz, a student at Harvard Law School. — The number of judges varies:
The ideal solution would produce politically neutral results in the short term and, in the long term, assuage partisan sentiment and strengthen the institution’s legitimacy before the public. Perhaps most importantly, as Supreme Court Commissioner Adam White stated in a statement about the commission’s work, any solution should encourage continued “self-reform undertaken in a spirit of restraint.” On a practical level, any proposed reforms would need to be implementable through legislation, not through impenetrable constitutional amendments.
In another Supreme Court-related development, there’s a surprise for Trump supporters who are hoping the court will soon rule that Trump has presidential immunity from criminal prosecution. “One of the most surprising aspects of this potential ruling is that it could give near-dictatorial powers to Biden with just a few months left in his term,” argues David Faris, an associate professor of political science at Roosevelt University.
He wrote in a Newsweek op-ed:
A president can declare martial law at will, deploy the military against American citizens and cities, personally murder critics, journalists, and rivals, and issue legal memoranda indefinitely suspending the U.S. Constitution without fear of legal liability. In a world in which Justice Samuel Alito and his colleagues have decided that Donald Trump exists outside the rule of law, the only real constraint on presidential power is whether other people are willing to carry out his orders. And after sitting through the Oscar-winning film Zone of Interest, which depicts the Auschwitz commandant holding a garden party in his backyard while the screams of murdered innocents echo all around, you can’t necessarily expect anyone to know where the line is.
This week, 4 years ago
In June 2020, Washington Post columnist Molly Roberts reported on a hilarious turn of events in a dark time: K-pop fans from around the world had disrupted a Trump rally in Tulsa. “The president had trotted out in the days leading up to the rally, expecting a million people. In the end, only about 6,200 supporters showed up to the 19,000-seat arena,” Roberts wrote. “TikTok’s teen army claimed responsibility for the failure of last weekend’s comeback campaign event, declaring that they had signed up for hundreds of thousands of tickets as a prank.”
- Is Monster hot? Novelist Emily Gould writes in The Cut about the new genre of erotic books. read.
- sorry? The Washington Post editorial board applauds Maryland Governor Wes Moore’s (Democrat) decision to expunge marijuana-related convictions. Click here for details.
- How many more? Post columnist Kate Cohen Dobbs decision. It’s worth your time.
