The Daily Signal - Biden’s Supreme Court ‘Reforms’ Are ‘Shameful’ and ‘Dangerous,’ Legal Expert Warns

Episode Date: August 8, 2024

President Joe Biden’s proposed changes to the Supreme Court are “shameful” and “dangerous,” legal expert John Malcolm says. Last week, Biden announced a “bold plan to reform the Supreme Court,” including ending lifetime appointments in favor of 18-year terms, implementation of an enforceable code of ethics, and an attempt to reverse the U.S. Supreme Court's recent ruling on presidential immunity. “It is attempting to attack the integrity of the court and to destroy the independence of the one body that is supposed to be apolitical,” says Malcolm, senior legal fellow and vice president of the Institute for Constitutional Government at The Heritage Foundation. Malcolm joins “The Daily Signal Podcast” to explain the likelihood of any of Biden’s three proposals actually being implemented, and what each would mean for the integrity of the Supreme Court. Enjoy the show! Learn more about your ad choices. Visit megaphone.fm/adchoices

This is this really dangerous stuff. It is attempting to attack the integrity of the court and to destroy the independence of the one body that is supposed to be apolitical. This is the Daily Signal podcast for Thursday, August 8th. I'm Virginia Allen. And that was Heritage Foundation, senior legal fellow, and the vice president of the Institute for Constitutional Government at Heritage, John Malcolm. Last week, President Biden introduced three significant reforms to the Supreme Court, including a plan to implement term limits on Supreme Court justices. But are these recommendations even constitutional? And is there any chance that these reforms would even be implemented? And if they were, how would they change the Supreme Court?

Malcolm joins me on the show today to explain those questions and more. Stay tuned for our conversation after this. This is Rob Bluey from The Daily Signal. Looking for a podcast that cuts through the noise and delivers honest, truthful, and conservative perspectives, check out the Daily Signal podcast. Each weekday, we bring you interviews with policymakers on the issues that matter most. From breaking down complex legislation to exposing media bias, we're committed to giving you the facts that you won't hear from the establishment media. Subscribe now to the Daily Signal podcast on Spotify, Apple Podcast, or wherever you listen.

I'm so pleased to welcome back to the Daily Signal podcast today, Heritage Foundation Senior Legal Fellow and Vice President for the Institute of Constitutional Government at the Heritage Foundation. John Malcolm. John, thanks for being back with us. Thanks for inviting me back, Virginia. Well, no shortage of things to talk about out of the Supreme Court and related to the Biden administration's actions or attempted actions on the court. We've actually seen some new news just recently that Senate Majority Leader Chuck Schumer. He's introduced something called the No King's Act. this is an attempt to reverse the U.S. Supreme Court ruling on presidential immunity. So let's start there. What exactly did the Supreme Court rule not too long ago on presidential immunity? Remind us of that. Yeah. So before I do that, so you could not reverse what the Supreme Court did via legislation at all. He may be trying to put down in a law what would constitute an official act, what would constitute an unofficial act. But reversing this is going to. to require a constitutional amendment. All right. So what the Supreme Court did has been mischaracterized

by President Biden. So he has his three reform proposals. One of them is what he calls the no one is above the law amendment. And his characterization of the Supreme Court's opinion is that the court gave absolute immunity to former presidents for sort of any action that they take while they were in office. And that is just a misrepresentation of what the Supreme Court did. What one can legitimately criticize what the Supreme Court did. Don't get me wrong. But what the majority actually held was that there is a small category of official acts that presidents take for which they are absolutely immune.

And those are acts that a president undertakes pursuant to his or her exclusive authority that is given to a president under the Constitution, issuing pardons, negotiating treaties, But that's a very small category of what presidents actually do. There's a far broader category in which they are given concurrent power with Congress under the Constitution or in which Congress passes a law that gives authority to an executive branch to act. For those types of official actions, the court said, well, they are presumptively immune, but like any other presumption, a presumption can be overreesome. by a prosecutor showing that this was way outside of reasonable of what any president would do,

and that if you were to label this as a crime, it would really not have a chilling effect on any future presidents because it was such an outrageous thing to do. So that presumption can be overcome. And then they said, with respect to unofficial acts, anything that they take in their personal capacity, either running as a candidate or just going out into the street and shooting somebody that is totally unrelated to their official acts, They received no immunity whatsoever. And then they remanded the case back to Judge Tanya Chutkin to say, now you sort through what the different allegations are to determine what would constitute unofficial acts and what would constitute official acts. You can take issue with that opinion. You can say it was too broad.

But don't mischaracterize what the court did. But for Chuck Schumer and for Joe Biden, here they really get a tufer. They get to criticize Donald Trump and they get to criticize the Supreme Court, both of which are very unpopular among the Democratic base. And this is really just designed to energize their supporters to head to the polls. I mean, I'm happy to talk about all of these reforms. But let's step back a second. Joe Biden has been a United States senator for 36 years. He was a vice president for eight years. He has been a president for nearly four years. He had a commission to study potential Supreme Court reforms. I testified before that commission during his first year as president. He never supported or offered any reforms to the Supreme Court. But voila, 99 days before the election, he all of us.

sudden is putting forward three reforms, none of which has any chance of actually going anywhere. You know, this is a, should be seen for what it is, which is a blatantly political move designed to energize his supporters to turn out to the polls. Okay. So you think it's all driven by politics, and that is given his track record that is a pretty night and day switch, that obviously he had opportunity in the past to recommend changes and didn't. Sure.

Let's talk about some of these other reforms that he's suggested. In addition to suggesting changes around that presidential immunity factor, he's also suggested that there should be terms for Supreme Court justice. Yeah, term limits. That instead of serving a lifetime appointment, you would serve 18 years. Why exactly did the founders say that we should have Supreme Court justices serve lifetime appointments? why not put a number on it? Well, before I get to that, one more thing about his amendment to overturn the Supreme Court decision.

He has this name. No one is above the law amendment, but he offers no language. He's just got a name for something. Just goes to show that it's not really a serious proposal. You know, so under the Constitution, federal judges are given life tenure subject to good behavior and they can be impeached. and they are also given their other protections. They cannot have their salary reduced while they are serving as judges.

All of these things were designed to insulate judges from the political branches of government so that they could truly act independently with protection, that they were not going to have to lobby for another job at the end of a term. they wouldn't have to bend the knee to what the political branches wanted them to do. And that's why they are given a life tenure. Now, you know, there are advantages and disadvantages to term limits. I actually wrote about that in my written testimony to the commission. So, you know, one thought is, well, you don't give a president, you know, so much power to appoint so many judges during their terms. So Donald Trump got to appoint three Supreme Court justices during his first term, perhaps only term.

Jimmy Carter didn't get to appoint any during his administration. That's the thought about that. He has not said, he being the president, whether he thinks that this can be accomplished by legislation or by a constitutional amendment. I personally think that it would require a constitutional amendment because, again, the Constitution gives judges life tenure subject to good behavior. There are some smart people. It's the minority view, but there are some smart people like Yale law professor Akila Marr who thinks that this can be accomplished by legislation. I just don't think that is right. So stepping back from this, one of the benefits, at least, of a constitutional amendment, if you were to go down this road, is it's not easy to do. It would take a while to accomplish. So it would not be something that Joe Biden or perhaps even in the next president, whether it's Donald Trump or a camel. Harris would be able to take advantage that. It would take a while to accomplish. And if there's a constitutional amendment, it requires supermajorities in both houses of Congress and a super majority of states. So at least you could say, if it's a constitutional amendment, that there

was broad support for changing the Constitution. It's not easy to change the Constitution. And that's a plus. That's not a bug in the system. That's a benefit of the system. But with respect at term limits in general, I have to say that I view this largely as a solution in search of a problem. So if you think that justices are sticking around too long and becoming mentally infirmed by being there, what's the evidence of that? Nobody suggested that Ruth Bader Ginsburg was losing her mental faculties before she died or the same thing for Antony and Scalia. I mean, you would have to go back all the way to William O. Douglas, who I think was just a perception that he was mentally infirmed when he was still sitting on the court. And it didn't require

term limit. What it took was the other eight justices to go into his office and say, Bill, you're really not up for this job anymore. You need to retire. And, you know, he bowed to the ravages of father time, and he resigned. So I don't think, I mean, why the Democrats are doing this is because there are six Republican appointees on the court and only three Democrat appointees. And they want to shuffle some of those Republican appointees, particularly Clarence Thomas and Samuel Alito, off of the bench. There were no term limits discussions whenever they had a super majority of justices on the Supreme Court, which the Democrats have had at various times. And the other thing, people have said, well, you know, if we have these things more regularly, if we have Supreme Court confirmation hearings every two years, well, that'll lower the temperature and depoliticize the process. I think that is complete baloney. I mean, Supreme Court confirmation hearings have become knife fights. And if anybody thinks that having a knife fight every two years is going to somehow lower the temperature in this country, you know, if that's their view, I have some beachfront property.

the Mahabi Desert that I would like to sell them. Certainly probably not going to lead to more unity in the United States. That is correct. Well, you know, there's obviously arguments for there to be term limits for members of Congress. So maybe there's a similar argument then to be made along the lines of Supreme Court justices when obviously they're not running for election because you can see so clearly how that does not ever work. Right.

They can't have that pressure. But from the time that they were seated on the bench, if they knew, all right, you know, 18 years and then done, are there some positives to that? You know, I, again, I can't think of too many other than, other than you don't have the luck of the draw of a Donald Trump getting three appointees and a Jimmy Carter getting none, that you have a regular say in terms of who gets to be the person appointing justices, and you have a sense that they will go do their time and finish and then either go back to private practice

or perhaps go get confirmed to a lower court or sit by designation. One practical problem is that the nine justices were currently there when they were confirmed, they were confirmed with the understanding that they were going to be in those positions for the rest of their lives unless they resigned or were impeached. I don't know quite what you do with them.

I don't think you'd have the ability to sit there and say, well, we have this new constitutional amendment, so we're going to have it apply to you and boot you off of the bench. you'd have to grandfather them in. But they'll have to be some kind of a discussion about that. So really the only benefit that I can think of is that you would make it less likely that a justice would stay until they were mentally informed. Not that that's been a real problem, certainly for the recent past.

And you would give every president a chance to appoint a Supreme Court justice. So everybody who build into the process that everybody who's electing a president knows that that president is going to get at least one Supreme Court nominee. John, let's talk about one of these other reforms, so to speak, that President Joe Biden has recommended for the Supreme Court. And that is introducing a code of ethics. But we already have a code of ethics at the Supreme Court. So what exactly is Biden suggesting here? He's suggesting that there be an enforceable code of ethics.

So the code of ethics Supreme Court has adopted it. They abide by it. These are the things that they're going to do. These are the standards for when they will recuse themselves. And Congress has passed laws about what it is. that they need to report about speeches they give or trips they take. They've changed the rules because, you know, they found out that Clarence Thomas has taken some trips at the behest of wealthy benefactors. And so they're saying that was it, the ethically improper. He's gone and sat there

and said, look, the rules at the time did not require me to appoint this stuff. If you change the rules, I'll report them. And that's what he's done. But that's not good enough to satisfy the left. So they want to not only have a code of conduct that applies to, to Supreme Court justices. They wanted to have teeth so that it's not the justices themselves who have decided whether or not they've engaged in unethical behavior. There's going to be some kind of outside body. One suggestion has been lower court judges who would examine all of these ethical complaints and they would impose some kind of a sanction if they found that something was violated. And I think there are a number of problems with this. In addition to the fact

that the left is screaming that the court has been compromised, ethically compromised, I think is shameful. It is dangerous. It is factually incorrect. The left had no problem. You didn't hear one peep when Ruth Bader Ginsburg and Stephen Breyer were taking very lavish trips nationally, you know, domestically and internationally paid for by very wealthy friends of theirs, including, for instance, the current governor of Illinois, J.B. Pritzker. And some of those people who paid for those trips actually had business. They had cases before the Supreme Court. You didn't hear anything. I mean, you hear people complaining about, you know, justice is going and speaking at the Federalist Society or coming and speaking at Heritage. You didn't hear any of

that when Ruth Bader Ginsburg was doing fundraisers for the American Civil Liberties Union. You don't hear any of this when Elena Kagan or Sonia Sotomayor or go to speak to the American Constitution Society. So this is a completely hypocritical. one-way ratchet. Now let's add another layer on that, which is the Supreme Court, unlike every other lower federal court, the Supreme Court owes its existence and authority to the U.S. Constitution. The U.S. Constitution says there shall be a Supreme Court, and then such other courts as Congress may establish. So Congress has, by law, established all of the lower federal courts, and because they were established by Congress, Congress has a little bit more authority to impose.

enforceable rules on the lower courts. But the Supreme Court doesn't owe its existence to Congress. I don't think that Congress has any more right to impose an enforceable code of conduct on the Supreme Court justices than the Supreme Court justices would have the right to impose an enforceable code of conduct on members of Congress. And by the way, I think that members of Congress need an enforceable code of conduct a lot more than the Supreme Court justices. It would also be very, very strange to have lower court judges, even if they're people of good faith, sitting in judgment on the actions of Supreme Court justices who at the very same time are reviewing cases that were decided by those judges. Oh, that could get messy quickly. That could get messy

extremely quickly. And by the way, if you ended up enforcing some kind of an enforceable code of conduct, Justice Lennie K. said, oh, well, you know, this could actually be really good. them because a lot of these claims are frivolous and this way we could have, you know, people finding that they're frivolous and their judgments would get respected by the public. I think that's wrong. I actually think what would happen is that if you had an enforceable code of conduct, there would be an avalanche of ethical complaints against the Republican appointees on the Supreme Court, designed to intimidate them. If it doesn't intimidate them, certainly designed to intimidate other Republican appointees on the lower federal courts.

And it would be designed to gum up the works of the Supreme Court. I just think it would be probably an unconstitutional idea. And other than that, a bad idea to address what is really a phony scandal. In other words, it would be weaponized. Yep. Okay. So when we look at these three proposals that Biden has put for the presidential immunity, the ethics, the term limits, chances of any of these actually moving through the process,

becoming law being set in place, scale 1 to 10, how likely? Somewhere between zero and one. Okay. It's not happening in other words. Yeah, you know, you're not, this is a political issue, and it just continues the left's attacks on the Supreme Court because they don't like some of the opinions that the court is issued, and they're incensed by the Clarence Thomas's and Justice Alito's, Samuel Alito's of the world. But in order to propose even legislation, you need majorities in both houses of Congress, you would have to overcome a filibuster. The legislative filibuster still exists. I don't see that happening, particularly with the Republicans in control of the House of Representatives. And with respect to a constitutional amendment, you would need supermajorities in both the House and the Senate and then send it to the states for ratification. That would even be harder to accomplish. But there was never actually about getting these things done. This was about political messaging. Do you think that if Harris becomes our next president, do you think that she would continue on this path of sort of pushing these things? Or do you think, like you said, like this is kind of just election season, people throwing mud at the wall? She may very well continue it. And let me say what could happen. So if the Democrats take control of both the House and the Senate, or frankly if they just have a tie in the Senate, but they have the White House with the Democratic Vice President who could break a tie.

If they had that, and if they could accomplish something by legislation as opposed to a constitutional amendment, and if they were prepared to blow up the legislative filibuster, then they could pass laws and the president could sign it. So, for instance, court packing. The Constitution does not say how many justices there should be on the Supreme Court. That number has actually changed over time, although it's been nine now from three. shortly after the end of the Civil War, and even Ruth Bader Ginsburg said that nine seemed like a very good and workable number. Mike Lee has a proposal called the Keep Nine Amendment. He actually wants to have a constitutional amendment, so you would then have nine members set in the Constitution. But at the moment, Congress could pass a law that says we're going to add seats to the Supreme Court.

Democrats have proposed adding just enough Supreme Court justices to the court so that there are a majority Democrat appointees over the 63 current Republican majority. And all that would take is passing both houses of Congress and a presidential signature. John, any final thoughts before we let you go today? No, I just think that this is really dangerous stuff. I mean, it's shameful. It's blatantly political. but it's also very dangerous. It is attempting to attack the integrity of the court and to destroy the independence of the one body that is supposed to be apolitical. If you don't like the rulings of

some of the Supreme Court justices, if it involves legislation, then you can pass a law that reverses that decision. If it's a constitutional decision, you can either try to amend the Constitution or hope to persuade a future majority of the Supreme Court to overturn that decision. That does happen over time. But, you know, these attacks are really terrible. I mean, you know, people need to at least believe that these justices are acting with integrity. And by the way, I believe that. I mean, I, if you look at the three Democrat appointees, Katanji Brown, Jackson, Olena Kagan, Sonny Sotomayor, I may disagree with a lot of their decisions. But I don't think that they're violating their oaths to uphold the Constitution.

I think that they're interpreting the Constitution as they see it. And I certainly don't think that their opinion would be so cheap that they would sell it to somebody who pays for a nice dinner or puts them on a private plane to go to a swanky resort for a while. These are people who have a well-earned reputation for integrity. And I say that about the Republican appointees and the Democrat appointees. And the only, the last time there was a Supreme Court justice who was legitimately ethically challenged. It was Abe Fortis during the Lyndon Johnson administration. That all came to light when Lyndon Johnson tried to elevate him from being associate justice to chief justice. He was filibuster.

And it was the Democrats that joined that filibuster. And the reason he was not elevated to chief justice. and by the way, he shortly resigned after he lost was because he was indeed ethically challenged. And that has been documented in many, many different fora. But not the justices who are serving now. I think that they are people of integrity and they should be treated with respect, not the calumny that the liberals are dishing out on the Republican appointees. The Heritage Foundation's John Malcolm.

John, thanks for your time today. We really appreciate it. My pleasure. Great to be with you. With that, that's going to do it for today's episode. Thanks so much for joining us here on the day. Daily Signal podcast. Make sure you hit that subscribe button so you never miss out on the latest shows from The Daily Signal, whether our morning interview editions like this one right here or our afternoon top news. Every weekday, around 5 p.m., we bring you the headlines of the day.

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