President Joe Biden’s sweeping proposals to reform the US Supreme Court and the American Presidency are steeped in irony. It is not lost on the citizenry that the Court’s own acts have inspired Biden’s proposals to rein in presidential power and curb the excesses of the nation’s High Bench. The Court’s creation in Trump v. United States of absolute executive immunity from criminal prosecution for a president’s official acts stunned the nation, betrayed the rule of law and left a sitting president, of all officials, to complain that it gives the presidency too much power. Thus Biden has proposed a constitutional amendment—“No One is Above the Law Amendment”—to restore what the Framers of the Constitution intended, and what has always been understood, at least until the Trump decision, that a president is amenable to the judicial process and possesses no immunity from criminal prosecution.
Nor it is lost on Americans that Alexander Hamilton’s description in Federalist No. 78 of the judiciary as “the least dangerous branch” is not always true and, indeed, has been undercut by the current version of the Supreme Court. Rulings that have overturned long standing precedents and stripped citizens of voting rights and abortion rights, combined with the behavior of Justices Clarence Thomas and Samuel Alito that flaunt judicial ethics, affirm the increasingly bi-partisan calls for Supreme Court reforms. Accordingly, President Biden is proposing term limits for the Justices and congressional passage of an enforceable code of judicial ethics.
President Biden’s initiatives are, at this moment, long shots in this deeply divided nation, particularly in an election year, but they are timely and should generate serious discussions in Congress and across the country. There is in Biden’s calls for reform the echo of constitution-making, the very essence of the work of delegates to the Constitutional Convention who shaped the doctrine of checks and balances to empower and restrain both the American Presidency and the Supreme Court. The Framers agreed that they were reacting to historical patterns of abuse of power, as well as weaknesses in the Articles of Confederation, while anticipating the twists and turns of growth in the nation that encouraged them write, to borrow from the majestic words of Chief Justice John Marshall, a “Constitution that will endure for the ages.”
Governmental problems in 1787, like those in 2024, encourage thoughtful consideration, discussion and debate, reforms and remedies. Structural remedies of the sort that have defined the Constitution, in both its origins and amendments—term eligibility, voting rights, enumeration of powers and restraints—are the product of vision, ingenuity and political compromise. In the beginning, there was no limitation on term eligibility for the presidency, just as there was no limit on the years of service on the Supreme Court, save for the provision in Article III that a Justice would hold the seat “during good behavior.” Reaction to the sweeping authoritarianism that engulfed the planet and gave rise to World War II, however, persuaded Americans to ratify the 22nd Amendment, which imposed a two-term ceiling on those holding the Office of the Presidency. The concern, then, was to prevent the aggrandizement of power that often accompanies lengthy service in an office or post.
The focus of term limits in the 22nd Amendment was curbing executive power, which is the same concern that drives President Biden’s proposal for a constitutional amendment to correct the Supreme Court’s invention of executive immunity from criminal prosecution. The Court’s unprecedented and inexplicable expansion of executive power in the Trump case converts the chains of the constitutional limitations on the presidency, in Thomas Jefferson’s phrase, into “mere ropes of sand.” The Framers’ fear of unbridled presidential power dominated their discussions in Philadelphia, but that deep-seated concern seems to have escaped the Court’s reasoning.
The focus of President Biden’s call for term limits on Supreme Court Justices is judicial power, but the considerations that motivated ratification of the 22nd Amendment are equally compelling. The temptation to abuse power, whether by presidents or judges, to achieve one’s ends is an enduring challenge to constitutional government and requires, from time to time, changes in our legal landscape. This is such a time. In the weeks ahead, we will explore these proposals in detail.
David Adler is president of The Alturas Institute, created to advance American Democracy through promotion of the Constitution, civic education, equal protection and gender equality. He has lectured nationally and internationally on the Constitution and the Bill of Rights. His scholarly writings have been quoted by the US Supreme Court, lower federal courts and by both Republicans and Democrats in Congress.
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