A US Supreme Court shake up? Proposed amendments explained

The White House briefing room published a fact sheet on 29 July outlining Biden’s reforms to nominally “ensure no President is above the law.” Following several years of significant legal decisions by the Supreme Court that have rewound historical progress for women’s reproductive rights and holding Presidents liable for illegal behaviour, Biden’s reforms have formed a fundamental pillar of the Kamala Harris-led Democratic campaign for the presidency.

Ethics scandals have plagued the Supreme Court in recent years – most publicly, those of Justices Clarence Thomas and Samuel Alito. On the same day that Biden released his three key reforms via a Washington Post opinion piece, the Annenberg Public Policy Center reported on a “withering of public confidence in the courts.” The House of Representatives is presently dominated by the Republicans, meaning Biden’s reforms face a rocky road through Congress and are unlikely to be enacted without extended negotiations.

Amendments include:

• No immunity for crimes a former President committed while in office. According to The White House media release, “This No One Is Above the Law Amendment will state that the Constitution does not confer any immunity from federal criminal indictment, trial, conviction, or sentencing by virtue of previously serving as President.”
• An 18-year serving period for Supreme Court justices, enabling a president to appoint a justice at the end of a two-year term, rather than the lifetime seat that justices can present occupy. This amendment could be implemented via amendment to the Constitution or through statute. The United States is the only major constitutional democracy that gives lifetime seats to its high court Justices.
• A binding code of conduct for Supreme Court justices, who – unlike other federal judges – are presently free of any binding code of conduct. In November, the justices’ adopted their own self-designed code of conduct which Biden has dismissed s “weak and self-enforced”, falling short of the requirement to disclose conflicts of interest, recusal from cases it would be unethical for them to preside over, and disclosure of gifts.

The proposed amendments to the Constitution can only be enacted upon a two-thirds vote of both houses of Congress, followed by ratification by three-quarters of the states. At the annual conference held by the U.S. Court of Appeals for the 9th Circuit in July, which has jurisdiction over nine western states and two Pacific Island jurisdictions, Justice Elena Kagan (who fields cases from the 9th Circuit) voiced support for an enforcement mechanism for the court’s ethics code.

In December 2021, a bipartisan presidential commission released its report into changes to the Supreme Court, the result of a presidential campaign promise by Biden a year earlier. Executive Order 14023 established this Presidential Commission on the Supreme Court of the United States, tasked with studying the “role and operation of the Supreme Court in our constitutional system” and providing “analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform, including an appraisal of the merits and legality of particular reform proposals.”

Amongst other decisions, the present Supreme Court has overturned the 40-year-old Chevron deference doctrine that underpins much of the modern administrative state [Loper Bright v. Raimondo], granted US presidents immunity from prosecution for acts committed while in office [United States v. Trump], upheld laws banning gun purchases by people subject to a domestic violence restraining order [United States v. Rahimi] preserved access to the abortion pill, mifepristone [FDA v. Alliance for Hippocratic Medicine], and ruled that colleges and universities’ affirmative action programs violated the Equal Protection Clause of the Constitution and are therefore unlawful. This effectively overturned the 2003 ruling Grutter v. Bollinger, in which it said race could be considered as a factor in the admissions process because universities had a compelling interest in maintaining diverse campuses.

Longtime federal judge weighs in on Supreme Court terms

The Hon. Nancy Gertner is a Professor of Practice at Harvard Law School. She was named a member of the Presidential Commission on the Supreme Court of the United States by President Biden on April 9 2021.

Gertner was nominated to the United States District Court for the District of Massachusetts by President Bill Clinton on October 27 1993, confirmed by the Senate on February 10 1994, and received her commission on February 14 1994. Gertner assumed senior status on May 22 2011, and retired on September 1 the same year.

She tells LSJ that the lifetime terms are in part, a function of an early constitution that anticipated shorter life spans and an inevitable changeover of Supreme Court justices through natural means.

“I don’t think that, in many areas of our government, the metes and bounds of the institution was not carefully thought out. It was the first Supreme Court. Its power evolved over time. It was not until a famous case called Marbury v. Madison [5 U.S. 137] came down that people recognised that this Court, in fact, could be the last word on constitutional interpretation,” she says.

“So, the powers of the court have grown. The court was originally less than nine, and there were no term limits because they were more interested in making sure that it would be an independent judiciary, and lifespans were short, so no one envisioned that it would be a court with people into their 70s or 80s.”

She adds, “I was on the White House commission on the Supreme Court, and we were analysing all of the issues with the Supreme Court, from term limits to mandatory retirement to a code of ethics, and there were varying views because President Biden wanted to hear both sides. I think he’s now come around to an 18-year term, which is certainly a long term. There are two questions that come up. One is, does it require a constitutional amendment to extend the term, which is very difficult to accomplish in the United States, or can it be done by legislation?”

A proposal has evolved that will enable it to be to be done by legislation, but Gertner says, “I have no doubt that it would be questioned and challenged in the courts. The theory is that at the mandatory age, whatever that would be, the justice would take what’s called ‘senior status’. You remain a judge or a justice, but you would serve on the lower courts in an appeals panel. The voting members of the court would be those who were younger than the mandatory age, and there would be two vacancies every presidential term.”

An unorthodox situation

Gertner says, “This court is unique in a number of ways. At least three of the members, in my view, were selected in an unorthodox way. So, the first replacement that former President Trump had was the replacement for Justice Scalia. Justice Scalia had died at the beginning of President Obama’s last term. Mitch McConnell, the head of the Senate, refused to hold a hearing for that year, which was unheard of.”

As far as letting voters decide, there was a year before the voters had such an opportunity.

“When Trump won, he appointed Justice Gorsuch. Many believe that was an illegitimate appointment – I can’t say illegal because, as in many things with the United States government, it wasn’t like there was a rule that said when there’s a vacancy, the Senate must hold a hearing. But there’s certain norms.”

The second was Justice Kavanaugh.

“When Justice Kennedy retired, that gave Trump an opportunity to make an appointment. Then finally, the third appointment was when Ruth Bader Ginsburg died suddenly and Justice [Amy Coney] Barrett was appointed by President Trump, even though it was already late October or early November, and the voting was going on for the presidency.”

This third appointment turned a court which is usually balanced with moderates from the left and right to, as Gertner describes, “a six-to-three conservative majority, and not just an ordinary conservative majority. These, in my view, were zealots who were reticent about creating new rights under our very old constitution, and they were determined to undo the rights that had already been created by other courts. So, you had the cancellation of Roe v. Wade [410 U.S. 113] with an extraordinary statement by Justice Alito that Roe v. Wade was egregiously wrong.”

She adds, “Precedent evolves over the years, but rarely do courts say, ‘that was wrong way back when’, you will say, ‘times have changed. The understandings are different.’ That’s not what they did. They said this was wrong when it was decided. And since then, this Court has been hurtling to reverse decades-old precedent.”

“We’re an old country with rules that were not ever specifically focused on the kinds of issues we’ve now seen.

“The Constitution did not provide for the situation we find ourselves in. It needs to be either amended, or the statutes have to change.”