A Call to Fix the Supreme Court

In the face of political shenanigans by some Supreme Court justices, President Biden is calling for reform.

In recent years, Supreme Court controversies and questionable ethics coupled with the typical Republican “dirty tricks” and shady tactics have resulted in new calls to reform the High Court. Now, President Joe Biden has issued a call to fix the Supreme Court.

Here’s what he had to say about the need for action:

“I have great respect for our institutions and the separation of powers laid out in our Constitution. But what’s happening now is not consistent with that doctrine of separation of powers.”

Some Background

Let's take a look at a bit of history that has led us to this moment.

Since 2015, the final year of Barack Obama’s term in office, the Republican Party’s approach to influencing the composition of the High Court has been controversial, even “shady.” Party leaders have employed numerous tactics to ensure a conservative majority. If these tactics were limited to ideological choices as the fruits of victory, I might not be critical—after all, to the victor go the spoils. Democrats must blame themselves for Donald Trump’s ascent to the White House.

However, Republican tactics were not limited to making party-friendly judicial appointments. They used twisted logic and unethical strategies to block a 2016 appointment and the reverse of that logic to advance one in 2020. Bragging about their cleverness or ability to outmaneuver the Dems doesn’t make their tactics right, ethical, or fair. 

Voters should hold Republicans accountable in November.

In 2016, following the death of Justice Antonin Scalia, President Obama nominated Merrick Garland to fill the vacancy. However, Senate Majority Leader Mitch McConnell (R) refused to hold a hearing or permit a vote on the nomination. He argued that the next president should fill the seat in an election year. This ridiculous notion was unprecedented and widely criticized. The seat was left open for nearly a year. When Trump won in 2016, one of his early official acts was to nominate an anti-choice conservative to fill the seat.

In 2018, Justice Anthony Kennedy, a key swing vote on the Court, decided to retire. Trump nominated Brett Kavanaugh, whose confirmation was mired in partisan conflict and allegations of sexual misconduct. Despite the controversy, the Republican majority in the Senate confirmed him, creating a 5-4 conservative majority.

In 2020, the Republicans completed the coup de grace of shameful political tricks. Ruth Bader Ginsberg died a few weeks before the 2020 presidential election. Contrary to his stance in 2016, Republican Senate Majority Leader McConnell and his cronies quickly moved to fill this “election year” vacancy with extreme conservative Amy Coney Barrett, securing a 6-3 conservative majority.

McConnell drew considerable criticism for his hypocrisy, but there was little the minority Democrats could do to prevent the appointment.

Jeopardizing Our Freedoms

This new Supreme Court majority has caused significant damage to our freedoms. Its controversial rulings have allowed the “limited government” party to enter our bedrooms and doctor’s offices, restricting our rights to control our bodies. Republicans and their hand-picked Supreme Court majority have entered our precincts, gerrymandered our districts, and restricted our rights to vote. They’ve challenged our diversity with anti-civil rights rulings and our rule of law by granting immunity for illegal acts committed by a president in office.

It will only get worse. Recent rulings in red-state courts limit our 1st Amendment rights to religion-free public schools, create book bans, and interfere with school curriculum autonomy. We, the People, still suffer from the Trump era.

Conservative court-stacking dirty tricks are bad enough, but ethical questions surrounding the Supreme Court’s most conservative justices have led to new calls for reform. Justice Clarence Thomas failed to disclose lavish gifts and financial benefits (expensive vacations—stays on billionaire Harlan Crow’s luxury properties, private jet flights, trips on Crow’s yacht) he received from wealthy friends and benefactors. His judicial ethics and potential for conflicts are rightfully called into question. Our system of justice relies on the assumption of fairness and objectivity. These private benefits suggest influence peddling and erode confidence in Thomas’s ability to be objective.

Justice Sam Alito also has faced his share of ethical controversies and decisions. He was part of the Citizens United majority that permitted corporations to spend unlimited amounts on political campaigns, giving the wealthy more political sway. He authored the Dobbs decision that overturned Roe v. Wade. Most recently, he has been embroiled in an upside-down flag controversy.

A neighbor photographed an upside-down flag flying at the home of Justice Alito. Flying an American Flag upside down as a symbol of protest has been used by pro-Trump protestors to disrespect America during the Biden administration. Alito’s open political advocacy highlights our country’s deep divisions and the Court’s role in creating those divisions.

Biden Issues Call to Fix the Supreme Court

President Biden, who once called for an expansion of the number of justices on the Supreme Court, rightfully called these political and ethical controversies into question in a speech last Monday during an event commemorating the passing of the Civil Rights Act.

His proposals include a constitutional amendment stripping the president of the criminal immunity in office that the Supreme Court recently bestowed. He also floated term limits for justices and a binding code of conduct (surprisingly, the Court has no formal code).

These proposals will go nowhere in a divided Congress. I believe they require a Constitutional Amendment, which requires a two-thirds majority in the House and Senate. However, they have brought these issues to the attention of our citizens, energized the progressive base, and presented the Democratic candidate, Kamala Harris, with an opportunity to weigh in on the president’s proposals. Harris promptly endorsed the changes, with the high Court’s approval rating at a historical low.

Democrats plan to highlight Trump’s three extreme-right Supreme Court picks in the 2024 election. Here’s another quote from President Biden’s speech:

“In recent years, extreme opinions that the Supreme Court has handed down have undermined long-established civil rights principles and protections . . . No one is above the law.”

He referenced a list of recent cases, including Trump v. The United States, which he argued permitted a president to break the law and face no consequences.

“I share our Founders’ belief that the president must answer to the law,” said Biden.

The constitutionality of Biden’s proposals hinges on Article III of the United States Constitution, which establishes the judicial branch of government. For example, the Constitution does not specify the number of justices, leaving that to be set by Congress. Historically, the number has varied, but it has been set at nine since 1869. Imposing term limits, improving the confirmation process, and enhancing ethical standards would also require an act of Congress. Thus, Biden’s proposals are technically possible, but practically and politically impossible. (Unless Democrats can take control over Congress and win the presidency.)

The Republican Party’s “dirty tricks” behavior related to all things Supreme Court has sparked significant controversy and charges of partisanship. Blocking the Garland nomination and speedily confirming Coney-Barrett is the best evidence of Republican shenanigans and politicizing judicial appointments. President Biden proposed a bipartisan commission to study the Supreme Court and recommend reforms. Can you imagine Trump doing such a thing -- or anything bipartisan, for that matter?

While President Biden’s proposals do not have a prayer of passing, they highlight the complex and contentious debate we must have in this country. Who we choose to lead us has serious consequences, especially regarding the Supreme Court.

Choose your future leaders in all branches of government carefully. Your precious constitutional rights depend on your vote, especially in 2024.

Harris for President

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Please check out Mark Bello’s latest book, "The Anti-Semite Next Door," an exploration of antisemitism in the context of today's political environment.

It's the latest in Bello's ripped-from-the-headlines legal thrillers, all available online at Amazon and other major online booksellers. He has quite the hero in Attorney Zachary Blake, who fights for justice on all fronts. His previous books are Betrayal of Faith, Betrayal of Justice, Betrayal in Blue, Betrayal in Black, Betrayal High, Supreme Betrayal, Betrayal at the Border, You Have the Right to Remain Silent, and The Final Steps – A Harbor Springs Cozy Legal Mystery. He’s also written a wonderful children’s book about bullying, “Happy Jack, Sad Jack,” and he's just released "Love Hate Law," a new legal romance novel. For more info, just check markmbello.com.