The President’s recent proposal to alter the Supreme Court is remarkable for several reasons. While I share many of the substantive sentiments motivating this initiative, and it would be nice if it sparked a dialogue across the country on both the substantive issues (women’s rights, presidential immunity, gun control, etc.) that led to it, as well as the nature and role of the judiciary (ethics, separation of powers). However, I have significant problems with both legal and political aspects of his approach. I’ll also have a few comments on the particulars.
The first thing to be said is that this feels much more like a performative political project than a serious constitutional initiative. No one reasonably expects either the current Congress or the one to be elected in the fall (regardless of who becomes President) to take up these ideas and move them forward either through statute or a proposed Constitutional Amendment. After all, Congress has turned into a place where the most minute and ordinary legislative matters become highly politicized. In a place where a motion to say “God Bless You” after the Speaker sneezed would be referred to committee and debated on MSNBC/Fox, we can hardly expect that an issue with real and long-term implications would get anywhere.
In this same vein, it’s curious that Biden continued to be the nominal author of the package now that he’s a lame duck. It would be politically more useful (both in terms of the upcoming election as well as the longer-term prospects for such proposals) if (K.) Harris were to carry the ball.
As to the underlying substantive issues that have led to the current unhappiness with the Court, I am no fan of the current jurisprudence; although there are more points to be said for the “conservative” perspective on most of them than the popular press would allow. Indeed, leaving the constitutional issues to the side for a moment, an awful lot of what gets stirred up in the public debate on many recent controversial court decisions has to do with statutory interpretation. Here, the issue really comes down to whether Congress is doing its job and whether the Court is appropriately calling them on their laziness and sloppy drafting. In a “normal” political environment, telling Congress that they weren’t sufficiently clear on various aspects of administrative delegation or the scope of their regulatory powers seems spot on. The fact that Congress hasn’t done a good job legislating is a problem we should all be concerned with (again, leaving the current dysfunctionality aside).
As to the Constitutional interpretations, I read the Court’s decisions as saying to the country that “If you folks want to have a new rule on abortion, gun control, etc. you need to clearly articulate, through the political process what you want.” The fact that our electoral process and underlying philosophic divide among the voters prevents the views of a majority from being enacted is not up to the Court to solve. For example, my problem with Roe is not the line drawn there, but rather the way the Court enabled the political branches (and the broader political culture) to not deal with the issues, enabling uncertainty and political disengagement. The Presidential immunity decision is a different matter entirely. It’s a remarkable piece of judicial intervention from a Court nominally opposed to “judicial activism.” There’s precedent (the 11th Amendment from 1794) for a quick amendment to reverse a bad Court decision.
Biden’s specific judicial proposals: term limits and a code of ethics are all entirely sensible on their own and neither is new. My critique is that they are reactive patches rather than comprehensive solutions to broader concerns. Term limits should apply to all judges (indeed, to members of Congress as well); ethical standards should be articulated (and enforced) for all senior elected and appointed officials and judges.
When looking across both levels of substantive issues and combining them with the questions of the Court’s practices and jurisdiction, what emerges is the need for broad constitutional reform, for reasons which I have articulated elsewhere. Chipping away at the fringes of the document invites pastiche and incoherence. Worse, solving a few of the constitutional problems we face (even assuming a handful of Amendments were approved) takes down the pressure and reduces the coalition necessary for the kind of broad change that is really needed.
It's pretty rare for a President to engage in Constitutional politics. Biden’s proposals have invited all sorts of comparisons with Roosevelt’s famous Court-packing proposals of the 1930s. I’m sure Joe likes to see himself as carrying on FDR’s legacy in many ways and this one seems to fit. However, it’s not clear to me that there is a broad consensus in the country for what Biden has proposed comparable to the popular and electoral energy behind the New Deal. Each House of Congress in 1937 was more than 70% Democratic. The People had spoken—clearly and repeatedly. Nowadays, the margins in each House are razor thin and are likely to remain so next year, too. Serious public debate followed FDR’s proposals in both Congress and in public forums. And, yes, there were both partisan and ideological spins; but our poisoned atmosphere leaves little space for substance.
Biden’s proposals are “politics as usual.” They will waste political capital, increase public weariness and cynicism. In the end, their political lameness only makes it easier for the broader political culture to brush aside the need for broader and more fundamental (often constitutional) change.
The first thing to be said is that this feels much more like a performative political project than a serious constitutional initiative. No one reasonably expects either the current Congress or the one to be elected in the fall (regardless of who becomes President) to take up these ideas and move them forward either through statute or a proposed Constitutional Amendment. After all, Congress has turned into a place where the most minute and ordinary legislative matters become highly politicized. In a place where a motion to say “God Bless You” after the Speaker sneezed would be referred to committee and debated on MSNBC/Fox, we can hardly expect that an issue with real and long-term implications would get anywhere.
In this same vein, it’s curious that Biden continued to be the nominal author of the package now that he’s a lame duck. It would be politically more useful (both in terms of the upcoming election as well as the longer-term prospects for such proposals) if (K.) Harris were to carry the ball.
As to the underlying substantive issues that have led to the current unhappiness with the Court, I am no fan of the current jurisprudence; although there are more points to be said for the “conservative” perspective on most of them than the popular press would allow. Indeed, leaving the constitutional issues to the side for a moment, an awful lot of what gets stirred up in the public debate on many recent controversial court decisions has to do with statutory interpretation. Here, the issue really comes down to whether Congress is doing its job and whether the Court is appropriately calling them on their laziness and sloppy drafting. In a “normal” political environment, telling Congress that they weren’t sufficiently clear on various aspects of administrative delegation or the scope of their regulatory powers seems spot on. The fact that Congress hasn’t done a good job legislating is a problem we should all be concerned with (again, leaving the current dysfunctionality aside).
As to the Constitutional interpretations, I read the Court’s decisions as saying to the country that “If you folks want to have a new rule on abortion, gun control, etc. you need to clearly articulate, through the political process what you want.” The fact that our electoral process and underlying philosophic divide among the voters prevents the views of a majority from being enacted is not up to the Court to solve. For example, my problem with Roe is not the line drawn there, but rather the way the Court enabled the political branches (and the broader political culture) to not deal with the issues, enabling uncertainty and political disengagement. The Presidential immunity decision is a different matter entirely. It’s a remarkable piece of judicial intervention from a Court nominally opposed to “judicial activism.” There’s precedent (the 11th Amendment from 1794) for a quick amendment to reverse a bad Court decision.
Biden’s specific judicial proposals: term limits and a code of ethics are all entirely sensible on their own and neither is new. My critique is that they are reactive patches rather than comprehensive solutions to broader concerns. Term limits should apply to all judges (indeed, to members of Congress as well); ethical standards should be articulated (and enforced) for all senior elected and appointed officials and judges.
When looking across both levels of substantive issues and combining them with the questions of the Court’s practices and jurisdiction, what emerges is the need for broad constitutional reform, for reasons which I have articulated elsewhere. Chipping away at the fringes of the document invites pastiche and incoherence. Worse, solving a few of the constitutional problems we face (even assuming a handful of Amendments were approved) takes down the pressure and reduces the coalition necessary for the kind of broad change that is really needed.
It's pretty rare for a President to engage in Constitutional politics. Biden’s proposals have invited all sorts of comparisons with Roosevelt’s famous Court-packing proposals of the 1930s. I’m sure Joe likes to see himself as carrying on FDR’s legacy in many ways and this one seems to fit. However, it’s not clear to me that there is a broad consensus in the country for what Biden has proposed comparable to the popular and electoral energy behind the New Deal. Each House of Congress in 1937 was more than 70% Democratic. The People had spoken—clearly and repeatedly. Nowadays, the margins in each House are razor thin and are likely to remain so next year, too. Serious public debate followed FDR’s proposals in both Congress and in public forums. And, yes, there were both partisan and ideological spins; but our poisoned atmosphere leaves little space for substance.
Biden’s proposals are “politics as usual.” They will waste political capital, increase public weariness and cynicism. In the end, their political lameness only makes it easier for the broader political culture to brush aside the need for broader and more fundamental (often constitutional) change.
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