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On Monday, President Biden proposed two reforms to the Supreme Court—term limits for justices and a binding ethics code—along with a constitutional amendment to its recent presidential-immunity decision. Making his case in a Washington Post op-ed, the president claimed broad support and specifically thanked “the bipartisan Presidential Commission on the [SCOTUS] for its insightful analysis, which informed some of these proposals.”
But there’s a problem with Biden trying to use the commission to give his proposals legitimacy. Adam White, who served as a member of that commission, tells The Free Press that “nothing in our report actually recommended anything” that the president is now proposing.
Imposing term limits by statute would be unconstitutional, says White, a legal scholar for the American Enterprise Institute who was one of 34 experts who delivered a report on Supreme Court reforms to Biden in 2021.
“The Constitution explicitly guarantees that justices hold their office in good behavior, which means until impeachment or death or retirement, that’s always been understood as life tenure,” he explains.
Trying to get around this by “slicing and dicing the Supreme Court into subgroups”—granting justices 18 years of “active service,” after which they no longer participate in their ordinary duties—“opens the door to Congress playing total mischief with the court,” warns White. Biden is yet to explain the details of his proposals, but any legislation he brings to Congress is likely to be dead on arrival. In fact, House Speaker Mike Johnson said as much yesterday.
White adds that it’s “incredibly important” to have high ethical standards for justices, but “any proposal by Congress to assume for itself the power to micromanage the ability of justices to decide on their own code of ethics would be an enormous breach of the Constitution’s separation of powers.”
In other words, there’s nothing wrong with Biden’s proposals—beyond, you know, being unconstitutional.
Madeleine Kearns is an associate editor at The Free Press. Follow her on X @madeleinekearns. Read her piece “Trump Might Regret Picking J.D. Vance.”
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