The Post reported that Biden had two proposals in mind before he dropped his candidacy. The first would be to create an enforceable ethics code for judges, and the second would be to impose term limits on judges. Both proposals have constitutional issues: it is not clear whether the life tenure of federal judges can be changed by ordinary law or whether a constitutional amendment would be required. Similarly, any attempt by Congress to impose a binding ethics code on the Supreme Court could violate the separation of powers. But for now, it is enough to consider the merits of the reform proposals, which are realistic.
We have long supported term limits for Supreme Court justices, in part because we prefer them to the more radical alternative that progressives have tried to impose since the beginning of Biden’s presidency: expanding the size of the Supreme Court and “packing” it with ideologically friendly appointees. The movement has its roots in understandable Democratic anger at the recent history of appointments. Senate Republicans managed to solidify their Republican appointee majority for the time being by refusing to consider one of President Barack Obama’s nominees a few months before the 2016 election, and then quickly approving President Donald Trump’s nominee under similar circumstances in 2020. The Supreme Court often rules the way Republicans want it to on everything from abortion to federal regulation.
But staffing the Supreme Court would counter Republican politicization with Democratic politicization. The key is to not turn the judiciary into a partisan playground. Term limits would help make that happen. One reason Supreme Court nominations are so fierce is because the stakes are so high. People are living much longer than when the Framers wrote life tenure into the Constitution to protect the court from undue influence. Today, a president elected to a four-year term can influence the course of the judiciary for a generation.
But making justices’ terms 18 years would be more consistent with presidential and Congressional terms. If Supreme Court terms were staggered so that they open every four years, presidents would rarely appoint a disproportionate number of justices. Conversely, more frequent presidential elections would naturally appoint more justices from more popular parties over time. Justices would feel less pressure to decide when to leave office based on party control of the presidency or the Senate. Senators would also have less reason to vote against qualified nominees for fear that their choice might undermine a decades-long legislative agenda.
The idea for an ethics code grew out of recent scandals over the failure of the court’s existing system of self-regulation. Justice Clarence Thomas took lavish vacations funded by big Republican donors but failed to report them in his financial disclosure filings. Justice Samuel A. Alito Jr. also kept quiet about a trip to an Alaskan fishing lodge paid for by a hedge fund executive with business dealings with the court. Justice Thomas’ wife’s involvement in the “Stop the Steal” movement after the 2020 election also drew attention. Neither justice recused himself from a case that was supposedly related, but Justice Thomas eventually reluctantly filed a forward-looking report without admitting any ethical lapses. (Justice Alito maintained in an op-ed that he had disclosed everything the rules required.)
This debacle suggests that we need clearer clarification about the types of gifts that require disclosure and about appropriate fundraising activities, and the Court has belatedly provided that. What is still missing is an enforcement mechanism, and that may be difficult to design without infringing on the independence of the judicial branch. The President’s upcoming proposal should contribute to this debate by proposing not only a set of standards for the courts to follow, but also a system for holding the courts to those standards that meets constitutional standards. One possibility is to keep that system within the judicial branch. To do that, it would be necessary to give the position to a retired federal judge who the judges could at least consult about their ethical responsibilities.
Because Biden is no longer a candidate, his proposal is unlikely to be dismissed as an election-year ploy. Of course, he should write it as if it were true, and members of the legislative and judicial branches should treat it in a similar spirit.
