President Biden initiative Establishing term limits for Supreme Court members and an enforceable code of ethics could help restore much-needed public confidence in the Court. Just as importantly, it is a reminder that we must not surrender to a Court that has grown larger at every turn.
The president’s proposals will require congressional approval, and that in turn highlights the role every American can play in reining in a court that has tilted toward ideological activism: The key is what we do on November 5. You were probably taught that judges have the final say on our laws, but in reality that power belongs to voters.
To begin with, there is no doubt that it would be better for the court… judges with limited mandate who can no longer play politics with the time of their retirement and with a code of ethics that has teeth and could even eliminate the appearance of impropriety in the conduct of judges.
But the president should be calling for more: congressional action that specifically addresses the alarming decisions issued by the court's current conservative supermajority.
His most dangerous sentence, handed down on July 2, was His possession that Donald Trump enjoys “presumptive” immunity from criminal prosecution based on his “official acts.” The upshot is that the court, not a jury of ordinary Americans, will likely make the final decision on whether Trump is held accountable for his 2020 election falsehoods and conspiracies.
In Another radical decisionThe court overturned four decades of precedent and arrogated to itself power that had long been held by federal agencies. Rather than leaving the technical procedures for enforcing laws like the Clean Water Act to the Environmental Protection Agency, for example, the court said it should have the final say, regardless of expertise or democratic accountability.
Similarly, the court substituted its holding for the seemingly self-evident meaning of federal statutes by radically changing what constitutes a “Machine gun” and obstruction of official proceedingsAs Judge Amy Coney Barrett wrote in her dissent Following this latest decision, the majority had to do “textual somersaults to find some way — any “Clearly” he was able to get to the outcome he wanted. In doing so, he blocked a crucial gun safety measure and narrowed the grounds for charging those involved in the attack on the Capitol on January 6.
Fortunately, as supreme as the Supreme Court is, it does not have to have the final say in these cases. The Court can interpret the law, but we, the voters, through our representatives, decide what that law is.
For those who oppose the current Supreme Court’s power grab, that means going to the polls this year and voting for a Democratic majority in Congress, despite reasonable and good-faith disagreements with President Biden and his party. Those concerns will matter little if an unaccountable Supreme Court continues to aggrandize itself at the expense of the people.
Here's how a Democratic majority could fight back.
In the case of presidential immunity, one concern is that even if lower courts find that much of Trump’s conduct on January 6 was off the record and therefore subject to prosecution, conservative Supreme Court justices will simply unite to reverse that determination.
And yet, Article III of the Constitution allows Congress to make “exceptions” to the Supreme Court’s power to hear appeals. A restored Democratic majority in the House could pass a law declaring the lower court’s ruling final, and a Democratic majority in the Senate could do the same by voting for a one-time suspension of the filibuster, just as the Senate did. The Republican majority did it when he confirmed Neil M. Gorsuch to the Supreme Court.
As for the court's appropriation of deference to federal agencies, a Democratic majority in Congress could amend the Administrative Procedure Act to unambiguously give agency experts the benefit of the doubt on reasonable regulations. Likewise, a Democratic Congress could enact legislation to overturn the court's aberrant interpretations of the laws regulating machine guns and defining obstruction of official proceedings.
If voters in November keep the Supreme Court in mind when marking their ballots, they will not only be able to undo the most damaging decisions of this term, but also send a strong message to power-hungry judges: The nation's highest court can have the final say in the difficult cases that divide us, or it can push the law to the right. But it can't do both.
Aaron Tang is a professor of law at the University of California at Davis and a former law clerk to Justice Sonia Sotomayor. He is the author of “Supreme hubris: How overconfidence is destroying the Court and how we can fix it.” “@AaronTangLaw.”
