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JOE BIDEN ISSUES A STINGING DISSENT TO SCOTUS  
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Jamelle Bouie
August 2, 2024
New York Times
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_ The reforms President Biden has proposed are just the beginning of
a long battle to restore the independence of the Supreme Court that
was lost when conservatives seized this branch of our government for
their own ends. _

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The Supreme Court is caught in a crisis of its own making.

There is the gross corruption of Justice Clarence Thomas and Justice
Samuel Alito, who have received millions of dollars in gifts and
benefits from various billionaire benefactors
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There is the court’s open assault on the basic rights of tens of
millions of Americans, exemplified in its decision to overturn the
constitutional right to an abortion on the basis of a vague and
inconsistent standard of “text, history and tradition.”

And there is the hubris of Chief Justice Roberts, who, the legal
scholar Eric J. Segall
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has “led the court to coerce both state and federal governments to
abide by his personal preferences, whether or not positive legal
sources supported those decisions and at times even when prior law
quite clearly did not justify the chief’s opinions and votes.”

It is a testament to Roberts’s skill as a politician that he is
often viewed as a modest and moderate judicial institutionalist when,
in fact, he has used his position on the court to spearhead a
remarkable campaign of judicial activism. In cases like Shelby County
v. Holder in 2013 and the more recent West Virginia v. E.P.A., Roberts
all but deployed novel constitutional doctrines (“equal state
sovereignty” and the “major questions doctrine”) to achieve his
preferred results. In just the last term, the Roberts court has
rewritten the 14th Amendment to keep Donald Trump on the presidential
ballot as well as radically expanded presidential power in direct
contravention of the history, text and structure of the Constitution.

We have, in other words, a corrupt and lawless court that, led by its
conservative majority, has put itself above the constitutional system
as the exclusive arbiter of constitutional meaning. The Constitution
means whatever the Roberts court says it means, even when that meaning
conflicts with the basic principles of American democracy.

It is against this backdrop of institutional dysfunction and judicial
arrogance that President Biden, fresh from his decision to leave the
campaign trail in favor of his vice president, introduced his
three-point package of Supreme Court reforms.

“What is happening now is not normal, and it undermines the
public’s confidence in the court’s decisions, including those
impacting personal freedoms,” Biden writes
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an essay for The Washington Post announcing the plan. “We can and
must prevent the abuse of presidential power. We can and must restore
the public’s faith in the Supreme Court. We can and must strengthen
the guardrails of democracy.”

Biden is asking Congress to impose new ethics rules on the court, to
deal with corruption. “Justices should be required to disclose
gifts, refrain from public political activity and recuse themselves
from cases in which they or their spouses have financial or other
conflicts of interest,” he writes. He is calling for a system of
term limits in which “the president would appoint a justice every
two years to spend 18 years in active service on the Supreme Court.”

The idea is to prevent the gamesmanship that Republicans used to place
Neil Gorsuch and Amy Coney Barrett on the court as well as to preclude
the strategic retirements that Republican-aligned justices have used
to pass their seats along to a co-partisan, as Anthony Kennedy did in
2018 when he retired and pushed Brett Kavanaugh as his replacement
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Finally, Biden wants Congress and the American public to ratify a new
constitutional amendment overturning the Supreme Court’s decision in
Trump v. United States, which all but put the president above the law
by shielding him from criminal prosecution for illegal actions in
office so long as they were “official acts” — as defined by the
court, naturally.

Biden did not endorse Supreme Court expansion, which would be the
fastest way to rebalance the court. Nor did he call for any
reorganization or expansion of the larger federal judiciary, to dilute
the destructive influence of Trump’s judges on the bench.

Still, Biden’s proposal is worthwhile. Not because there is a good
chance of it becoming law — important constitutional questions
aside, there is almost no chance that Democrats could elect the
overwhelming congressional majorities needed to pass the package into
law — but because it represents something almost novel in
contemporary American politics: a willingness to challenge the Supreme
Court as a political entity and to offer, in response, an alternative
constitutional vision.

Biden’s proposal is a declaration that the court is wrong about the
Constitution, that it has abused its power and influence and that it
needs to be checked and balanced. He is, of course, far from the first
president to do this — Abraham Lincoln and Franklin Roosevelt come
to mind — but he is the first modern Democratic president to
recognize that the court as constituted is a major obstacle to the
party’s ability to govern in accordance with its popular mandate.

Whether or not Biden’s reform plan can pass, it is important that he
has planted a flag in opposition to the Supreme Court — a marker for
the next generation of Democrats to work from. And Vice President
Kamala Harris, as the Democrats’ de facto presidential nominee, has
already said that she will pick up the standard if elected in
November.“There is a clear crisis of confidence facing the Supreme
Court as its fairness has been called into question after numerous
ethics scandals and decision after decision overturning longstanding
precedent,” Harris said
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the release of Biden’s plan. “These popular reforms will help to
restore confidence in the court, strengthen our democracy and ensure
no one is above the law.”

Critics of the Biden reform plan say that it is an attack on judicial
independence, but that’s not right. As it stands, the current
Supreme Court — the crown jewel of a conservative movement that
spent 50 years and millions of dollars trying to shape the court in
its favor — is not at all independent of the ideological movement
and political party that trained its members and shaped its
jurisprudence.

Reform, then, is less an effort to restrain the independence of the
Supreme Court than it is the beginning of a long battle to restore the
independence that was lost when conservatives seized this branch of
our government for their own ends.

_Jamelle Bouie became a New York Times Opinion columnist in 2019.
Before that he was the chief political correspondent for Slate
magazine. He is based in Charlottesville, Va., and
Washington. @jbouie [[link removed]]_

_Get the best of the New York Times
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newsletter. Gain unlimited access to all of The Times with a digital
subscription [[link removed]]._

* SCOTUS
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* Presidential Immunity
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* Joe Biden
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