Constitutionalists Should Use Biden’s Judicial Proposals to Thwart the Legal Left
Back in July, when Democrats still pretended that Joe Biden was functioning as president, his administration released a proposal for judicial reform. It would specify that presidents are not immune from prosecution, create a code of conduct for the Supreme Court, and set 18-year judicial terms. A large majority of Americans backed these ideas, though a majority of Republicans feared the measures would pose a “major threat to democracy.”
The general public’s instincts were good. The increasingly bitter judicial wars undermine the rule of law as well as judicial institutions, and risk real, perhaps irreversible damage to the Constitution. Moreover, Biden was right to insist: “This nation was founded on a simple yet profound principle: No one is above the law. Not the president of the United States. Not a justice on the Supreme Court of the United States. No one.” Too bad his other policies have contradicted this claim.
Nevertheless, give Biden credit, he appears to genuinely oppose court packing and other legal atrocities, such as so-called “disempowering reforms,” proposed by lefties who gloried in the golden age of judicial activism during the 1960s and 1970s. Were the stakes not so high, their hypocrisy would be charming. During the Trump administration, political liberals, today mostly calling themselves progressives, were shocked to discover that the heretofore sainted judiciary could overturn their laws and regulations too. Hence the Left now stands with the people and for democracy against judicial rule!
A Democratic sweep in November would leave the issue of legal “reform” to those same lefties. Although they would undoubtedly make all the right noises about empowering the people, they could be counted on to distinguish cases and enforce their belief that the Constitution means whatever the looniest progressives are teaching in the most avant garde classes at the wokest law schools. After all, back when progressives still called themselves liberals, they enthusiastically lectured the American people on why judges were the new legislators, tasked with building the good and beautiful society. Never mind elected legislators and presidents. The people who were supposed to rule American life were jurists, tasked by the living and breathing Constitution with ferreting out the new meanings of old legal provisions, recognizable only by those admitted to the legal priesthood and its mysterious ways. Conveniently, winning a Supreme Court case is easier than fighting legislative battles to change policy in Washington and 50 states (plus the District of Columbia).
Legal lefties, by mindset if not partisan affiliation, filled many Republican as well as Democratic appointments — consider Earl Warren, Harry Blackmun, William Brennan, John Paul Stevens, and David Souter. Hence “the Constitution means what we the chosen say it does” school long controlled the Supreme Court. Celebrating the judiciary’s willingness to make policy, not law, what are now progressives defended the sacred doctrine of judicial review. Only independent justices, sheltered from political Neanderthals, whether in the public or Congress, would possess appropriate ideological enlightenment and lead Americans to the collectivist nirvana that Gaia, our mother earth, always intended.
Alas, the world has changed. In the Left’s view, the inmates took over the asylum. According to Michael Avery, onetime head of the radical National Lawyers Guild, the transformation of the judiciary is the fault of “the Federalist Society, the most powerful legal organization in the country, over the past four decades to drive American law and public policy to the extreme right.” By that he presumably meant that no longer did Supreme Court majorities believe their duty was to drive all levels of government to new levels of power, degrees of intrusiveness, and paroxysms of intolerance.
No doubt, the Federalist Society proved to be a formidable adversary. The Atlantic’s Adam Serwer made a similar if more general point: “The current makeup of the Roberts Court is itself the outcome of a partisan battle that has spanned decades, one in which the conservative legal movement has won a tremendous victory that is certain to shape American life for generations to come.”
Yet this campaign occurred despite the legal Left’s dominance. Elite law schools raced portside, Democrats long ran Congress and a majority of state legislatures, and Republican judicial appointees rarely did much more than slow the progressive juggernaut. Ultimately the reversal could not have occurred had Americans not seen the world shaped by judicial tyranny and decided that it was not good. They especially disliked the Left’s belief that judges knew better than the rest of us what laws we should live under and what policies should shape our lives. Roe v. Wade was the capstone, deciding that the public had nothing to say about what was and remains a complex balance between life and liberty. More broadly, it became evident that, for many progressives, the Constitution had surprisingly little to do with constitutional law, which increasingly was determined by judicial fiat.
Some intellectually courageous left-liberals once disagreed with their ideological brethren. Barely three years after seven Supreme Court justices, five of whom were Republican appointees, magically discovered a constitutional bar to state abortion restrictions, my redoubtably progressive constitutional law professor, Paul Brest, who went on to serve as dean of Stanford Law School, indicated his disquiet with the decision. It was something that he would support if a legislator, he explained, but even he found the high court embedding abortion in the Constitution to be an extraordinary reach.
One of Roe’s most trenchant critics was John Hart Ely of Yale Law School (who later went on to also become Dean at Stanford Law). He denounced the Supreme Court decision as “simply not adequate,” “very bad,” and a “dangerous precedent.” He criticized the opinion for lacking “even colorable support in the constitutional text, history, or any other appropriate source of constitutional doctrine.” Indeed, he wrote, the ruling “is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.”
That was then, however. Today a legal lefty stating such an opinion would be burned at the academic stake, with his or her ashes scattered to the wind. If the Dems gain an opportunity to pack the court, one hates to imagine what the next legal frontier will be.
Instead of ceding the legal reform field to those who would destroy the judiciary as an independent branch, Americans congregating under the classical liberal banner should respond with their own initiative. Surely the president should be held accountable for his actions. The Constitution’s framers never would have imagined giving a president broad and absolute immunity, or probably even something as broad as that decided in Trump v. United States.
True, the Supreme Court’s decision, though widely reviled, was not as radical as oft portrayed. The Heritage Foundation’s Hans von Spakovsky and Thomas Jipping complain that “Biden is jumping on the propaganda bandwagon without even knowing how this case will play out.” True enough, but that is best exposed by Republicans responsibly confronting the issue. The claim that Trump and his Supreme Court appointees are in cahoots, scheming to expand the imperial presidency at Trump’s pleasure, has fueled the Left’s assault on an independent judiciary. It would be good to explicitly reject precisely the sort of monarchical power that America’s revolutionaries successfully challenged and to do so in a constitutional amendment.
Similarly, there is good cause for an ethics code. Fair or not, the conduct of some justices appears to be careless at best. This, too, has given aid and comfort to lefty lawyers. Indeed, “reform proposals” based on appearances are particularly dangerous, since an emotional reaction to even modest abuses could lead to dangerous substantive changes. Spakovsky and Jipping worry about the “kind of manipulation and harassment, which the Left excels at,” that could hamstring right-leaning justices. To prevent that, judicial conservatives should take the initiative, developing standards and processes that could create ultimate accountability through careful oversight. Separation of powers may require such a rule to be imposed through a constitutional amendment. Even if not, a constitutional amendment would provide legitimacy for such a significant change in established procedure.
Most important is the case for judicial term limits. The U.S. is the only country that allows jurists to serve for life. (Moreover, only three states do so, and two of them set an age limit for holding office.) The significant increase in life expectancy also has transformed the legal impact of life tenure. Judicial term limits have gained support from across the political spectrum, in total from roughly two-thirds of the electorate. Most often proposed is a term of 18 years, with staggered appointments, two per presidential term. Reappointments could be allowed.
The issue is not partisan: Next time it might be a Democratic rather than a Republican president who gets to make three appointments in just four years. No longer would a justice’s tenure be determined by “strategic retirement” and legacy be shaped by longevity. No longer would a president’s influence over the court be so arbitrary and unpredictable. While an early death might still occasionally yield an extra appointment for a president — an alternative would be to provide for retired or specially chosen senior justices to temporarily fill in — that term would be limited and no chief executive would end up without any appointments.
With the process regularized, partisan obstruction likely would carry a higher political price; with the norm set as two appointments per term, compromise would more likely bridge divided government. No longer could the high court be attacked for being completely disconnected from the political process. Spreading appointments to more presidents would likely result in broader representation on the Supreme Court. Most important, though the selection of a new justice would remain important, it would no longer be considered potentially cataclysmic. Explained the Brennan Center for Justice’s Alicia Bannon and Michael Milov-Cordoba: “Shorter terms would lower the stakes of each nomination, while regularized appointments would both encourage compromise and allow for public accountability in the event of confirmation impasses.”
Nevertheless, there are critics. Adam White of the American Enterprise Institute backs life tenure, explaining, “We don’t want the justices looking over their shoulder at what their next job is going to be.” Another concern is that more rapid court turnover might speed doctrinal change, upending stare decisis.
However, granting life tenure to legal mediocrities or progressive extremists is a high price to pay to keep jurists looking ahead. Just as liberals celebrated Ruth Bader Ginsburg, conservatives reviled her. Right-leaning legal mavens might like the three Trump appointees, but even among them some criticisms have been heard. And consider previous GOP appointees who did so much to disappoint, and in some cases betray, the trust placed in them. Even Ronald Reagan fell short with his appointments of Sandra Day O’Connor and Anthony Kennedy.
Life tenure also allows persuasive but misguided justices to shape the law for decades, spreading their malign influence throughout the legal realm. Moreover, incremental change is unsatisfying in the face of grotesque legal error, whether Dred Scott v. Sandford, Plessy v. Ferguson, or Roe v. Wade. It took decades to reverse the latter two, which were treated as sacred writ by their supporters. As a result, after Roe’s overthrow, the public expressed its support for Roe as a symbolic, moderate ruling, nothing like the radical reality.
Perhaps most important, given the rarity of appointments and general length of service, Supreme Court nominations have increasingly become the political equivalent of nuclear war. The approval process undermines the high court and degrades public confidence. Moreover, it is a vicious conflict in which the Left has a decided advantage. On the legal front, at least, conservatives seem less willing — to their credit — to follow a strategy of personal destruction. At least, the mainstream media is less inclined to magnify their claims.
One other reform might prove helpful: make it easier to amend the Constitution. Doing so should not be a near impossibility. The very difficulty in changing the nation’s founding document has encouraged litigants and lawyers to look for a shortcut, in this case treating the Supreme Court as a continuing constitutional convention able to simultaneously propose and ratify amendments as desired.
Amid a tight presidential race, constitutionalists shouldn’t allow the legal Left to have all the fun. The American people should be asked to decide what they believe the appropriate role of a judge entails.
Doug Bandow is a Senior Fellow at the Cato Institute. He is a graduate of Stanford Law School and a member of the California and D.C. bars. A former Special Assistant to President Ronald Reagan, he is the author and editor of several books, including The Politics of Plunder: Misgovernment in Washington.
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