President Biden called on Congress at the end of last month to pass legislation to pass term limits for the Supreme Court and create a code of conduct for the Court, while also saying that Congress should pass an amendment to the Constitution saying that no president should be given immunity for crimes they commit while in office, in a recent press release.
Currently, the Supreme Court has no term limits, and a Justice can only be replaced if they retire, die, or are impeached. And while the justices did take a step in passing a code of ethics last year, the Justices themselves decide if they need should be recused from a case, and are still allowed to accept gifts from outside donors. This Supreme Court is also one of the most unpopular in history, with many voters calling for reforms.
According to a poll from Data for Progress, 73% of likely voters said that the Supreme Court should be required to follow the same ethical code as other federal judges. The Supreme Court Justice facing the most pressure is Justice Clarence Thomas, who has been accused of taking vacations paid by Conservative mega donors, such as Harlan Crow, in exchange for ruling in favor of groups Crow supports when their cases make it to the Supreme Court.
Another Justice who has come under fire is Justice Samuel Alito, who in July was caught on tape saying:
“One side or the other is going to win. I don’t know. I mean, there can be a way of working, a way of living together peacefully, but it’s difficult, you know, because there are differences on fundamental things that really can’t be compromised.”
This angered many voters, who see the court as the one to compromise the legal issues in the United States. Nevermind the controversy over both an upside-down American flag (which he blamed on his wife) and the Christian Nationalist “Appeal to Heaven” flag that were flown outside of his home
The Court has also had many rulings that have been unpopular among voters. Dobbs vs Jackon Women’s Health Organization, which led to the fall of Roe v. Wade and therefore federal protections of abortion, was one such ruling. A more recent case that led to fierce pushback was Trump vs The United States, where former president Trump argued that he had immunity for trying to overturn the 2020 election. The case went 6-3, with all of the six conservative justices voting in favor of Trump. When examining the case, Chief Justice John Roberts said, “The Court thus concludes that the President is absolutely immune from criminal prosecution for conduct within his exclusive sphere of constitutional authority.” Roberts also said that while presidents aren’t given protection for unofficial acts, they can be for official acts in office, which are not defined.
Justice Sonia Sotomayor wrote the dissent, saying “This holding is unnecessary on the facts of the indictment, and the majority’s attempt to apply it to the facts expands the concept of core powers beyond any recognizable bounds. In any event, it is quickly eclipsed by the second move, which is to create expansive immunity for all “official act[s].” Ante, at 14. Whether described as presumptive or absolute, under the majority’s rule, a President’s use of any official power for any purpose, even the most corrupt, is immune from prosecution. That is just as bad as it sounds, and it is baseless.”
Nicholas Staffieri, a faculty member from La Salle University who teaches Constitutional Law, sat down with the Bucks County Beacon to discuss the proposals and the current state of the Supreme Court.
What do you think of the proposals President Biden is making to reform the Supreme Court and asking Congress to create an amendment stopping presidential immunity?
I agree with the proposals. However, as Dean Erin Chemerinsky pointed out, President Biden’s proposals have almost no chance of passage.
The Commonwealth of Pennsylvania and some other states impose limits on the terms of their judges and justices. The constitution of the Commonwealth of Pennsylvania requires that the term of a state judge or justice on the Pennsylvania Supreme Court expires on December 31 in the year in which the state judge or state justice reaches the age of 75 years. (Before the state constitution was amended in 2016, the age limit was 70 years.) The process within Pennsylvania’s state court system appears to work well.
Why did the SCOTUS ruling in Trump v. The United States shock so many constitutional experts?
I dare say that the opinion not only shocked constitutional law experts, but also political scientists and historians of the United States. The opinion does not have a basis in the United States Constitution. Furthermore, the opinion is judicial activism, i.e. the decision is contrary to judicial restraint. The Supreme Court should have limited its review to the indictment under which Donald Trump was charged with violation of federal statutes. Instead, the opinion roams into hypothetical situations. At p. 10 of the slip opinion, the majority wrote:
The purpose of a “vigorous” and “energetic” Executive, [the Framers] thought, was to ensure “good government,” for a “feeble executive implies a feeble execution of the government .” [quoting from Federalist No. 70]
The United States Constitution replaced the Articles of Confederation. The Articles of Confederation was essentially a treaty organization by which the 13 independent sovereign states united to fight the British. The Continental Congress was the only governmental body that the Articles of Confederation established. The Articles did not create an executive nor did it create a judiciary (each state had – and continues to have – its own judiciary). The structural weakness of the Continental Congress coupled with no executive to carry out ordinances that the Continental Congress enacted put the 13 states in danger of disuniting. (Note that a president existed under the Articles, but the president presided over the Continental Congress, much as the speaker of the United States Congress presides over the House of Representatives.) Hence, Hamilton in Federalist No. 70 was explaining how the 13 states needed a strong executive in the federal government because the lack thereof created a feeble government under the Articles.
Why does SCOTUS not have term limits or a binding code of conduct?
The justices of the United States Supreme Court do not have term limits for the same reason that the judges who sit in the inferior federal courts (United States District Courts and Circuit Courts of Appeals) do not have term limits. The reason is set forth in Article III, Sec. 1, of the United States Constitution (printed below with original spelling and punctuation):
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.
READ: Scandal-plagued SCOTUS Should Take Ethics Lessons From PA Courts
The clause “hold their Offices during good Behaviour” means life tenure. The federal government also employs administrative law judges (e.g., judges who hear appeals from the Social Security Administration and Bankruptcy Court judges). Administrative law judges are not judges under Article III. The Congressional statutes that create administrative law judges set term limits.
The president of the United States appoints (with the advice and consent of the United States Senate) all Article III judges and justices. Administrative agencies hire administrative law judges.
The United States Supreme Court has a code of ethics that the court imposed upon itself. However, the code is weak and leaves much discretion to the individual justices. On the other hand, the United States Supreme Court as the administrative court for the entire federal judiciary imposed a strong code of conduct that applies to the District Courts and Circuit Courts of Appeals.I expect that in the event Congress creates a code of conduct for the United States Supreme Court, the Court will rule that Congress has no constitutional authority to do so due to the principle of separation of constitutional powers. (Separation of constitutional powers is a basis for the holding in Trump v. United States.)
