President Biden has proposed reforming a US Supreme Court whose integrity has been tarnished, if not ruined, by its most conservative members.
The president agreed to term limits and a binding code of ethics for judges. Most importantly, he asked Congress to pass a constitutional amendment to reverse the Supreme Court's astonishing decision granting presidents broad immunity from prosecution.
“What is happening now is not normal,” Biden wrote in an op-ed published by the Washington Post on Monday, “and it undermines public confidence in the court’s decisions, including those that affect personal liberties. We are now in a state of default.”
Greed, conflicts of interest, dishonesty, and the conservative justices’ deeply un-American interpretation of presidential power have led us to this moment. It is no accident that public confidence in the Court has plummeted. Its approval rating is near an all-time low, and its disapproval rating is near an all-time high.
“We are in an anti-democratic vicious cycle,” said Mike Sacks, senior counsel at Court Accountability, a new left-leaning nonprofit whose mission is to “stop judicial corruption and abuse of power.”
It's easy to see why esteem for the court has hit rock bottom.
Last year, ProPublica and other media outlets reported that Justice Clarence Thomas secretly accepted millions of dollars in gifts and luxury trips from wealthy, conservative benefactors who did business with the court. As we know from text messages he sent to then-White House Chief of Staff Mark Meadows, Thomas’s wife, Ginni Thomas, supported overturning the 2020 election. Despite this blatant conflict of interest, Thomas has not recused himself from cases related to the insurrection.
Similarly, Justice Samuel A. Alito Jr. did not recuse himself from the Jan. 6 cases even though his wife flew two flags at their home conveying sympathy for the insurrectionists and former President Trump, who still clings to the lie that Biden stole the election.
The three newest justices — Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett — misled the Senate during their confirmation hearings by claiming or implying that they believed the landmark case Roe v. Wade was settled law. In 2022, they overturned it, unleashing a new kind of hell on American women of childbearing age.
In 2016, then-Senate Majority Leader Mitch McConnell blocked President Obama’s nomination of Merrick Garland to the Supreme Court by creating a rule stating that no such appointments could be considered during an election year. Four years later, McConnell reversed course, getting the Senate to approve Barrett’s nomination just days before an election in which Republicans lost the presidency and the Senate.
The committed court has imposed a radical vision of the country.
In 2013, in an act of almost unspeakable naivety, he gutted the Voting Rights Act of 1965, unleashing a wave of voter suppression that continues to this day. (“Our country has changed,” Chief Justice John G. Roberts Jr. asserted in his majority opinion, prompting Justice Ruth Bader Ginsburg to declare that dismantling the nation’s most successful civil rights law was like “throwing away your umbrella in a storm because you’re not getting wet.”)
Last year, the Supreme Court struck down affirmative action in college admissions, a practice that, like abortion rights, had been upheld and reaffirmed for nearly half a century. It also invalidated Biden’s student loan forgiveness program. This year, it limited the power of federal agencies by throwing out a 40-year-old precedent known as the Chevron doctrine.
Most outrageously, the court turned the US president into a monarch by ruling that those in office enjoy broad protection from criminal prosecution.
“For all practical purposes,” Biden said Monday at the LBJ Presidential Library in Austin, “the court’s decision almost certainly means the president can violate his oath of office, flout our laws and face no consequences.”
She paraphrased Justice Sonia Sotomayor’s dissenting opinion: “Under the majority’s reasoning, the president will now be immune from criminal prosecution. He orders a Navy Seal team of 6 to assassinate a political rival? Immune. He organizes a military coup to cling to power? Immune. He accepts a bribe in exchange for a pardon? Immune.”
This is the most nightmarish vision of America ever imagined.
“I have great respect for our institutions and the separation of powers enshrined in our Constitution, but what is happening now is not consistent with that separation of powers doctrine,” Biden said. “Extremism is undermining public confidence in the court’s decisions.”
These powers not only need to be separated, but also rebalanced.
Reforming the Supreme Court will be a difficult project that will take years, but if we want to preserve democracy and the profoundly American ideal that no one is above the law, the Court's conservative justices have given us no alternative.
