by Jamil Ragland
A constitutional law professor at the University of Connecticut School of Law has described President Joe Biden’s attempt to reform the Supreme Court as “impossible” in the time that he has left, but says that it’s an important first step that may lead to eventual changes.
UConn Law Prof. Richard S. Kay Credit: Courtesy photo / No reproductions or republication without written consent of Richard S. Kay / Prof. Richard S. Kay
Prof. Richard S. Kay, Wallace Stevens Professor of Law Emeritus and Oliver Ellsworth Research Professor, said that two of Biden’s proposals would require constitutional amendments, which put them out of reach for the remainder of his term.
“President Biden’s plans, at least significant parts of it, are constitutional amendments. So that the part of the proposal where he wants to put in an 18-year term limit, he would do by amending the Constitution. Ditto for the elimination of presidential immunity, which of course means that it’s impossible. In order to get the constitutional amendment the first thing you need is a two-thirds positive vote in both houses of Congress so that’s obviously not going to happen. This is really just kind of throwing down the first step in what will, if it were to succeed, take a long time.”
Republicans currently have a majority in the House of Representatives and control nearly half the seats in the Senate, making a two-thirds vote to pass either constitutional amendment extremely unlikely. Additionally, after the amendment passed Congress, it would need to be ratified by at least three fourths of the states, or 38 states.
Last week, the Biden administration laid out its three-point plan for Supreme Court reform. The first, which the administration has named the “No One Is Above the Law Amendment,” states that the Constitution does not confer any immunity from federal criminal indictment, trial, conviction, or sentencing by virtue of previously serving as President. The second would change Supreme Court tenure from life appointment to an 18-year term on the court. Finally, the Biden administration supports a binding code of conduct for the Supreme Court.
In discussing the proposed changes, Kay pointed out that the reforms would make changes to areas where the Supreme Court is an outlier. For example, the Supreme Court is the only federal court in the country which does not have a binding code of ethics. He also said that adding term limits for justices would make the Supreme Court more similar to constitutional courts elsewhere in the world.
“What we have now, that is to say, lifetime appointments for judges is very unusual in the rest of the world. What the president proposes, that is 18-year terms, is much more like other countries. 18 years is a long time,” Kay said. “A long term like that kind of retains the independence of the judges while not having them kind of stay on forever, which has been a problem from time to time with the United States Supreme Court. As judges. they just get too old and don’t want to let go.”
While the path forward for a code of conduct would only require approval from Congress and the President, Kay states that it – and any other limitations on judicial power – would eventually end up right back in front of the Supreme Court itself.
“The argument would be that this is a violation of separation of powers, that Congress has no business fooling around with the rules that govern Supreme Court judges,” Kay said. “And then the court would decide. How would it decide? I don’t know. I would assume if it’s this court, exactly the members of this court, I sort of think they would hold that it’s an unconstitutional violation of separation of powers.”
Kay says there is precedent for Congress and the president attempting to make major changes to the Supreme Court, and that there have been both successful and unsuccessful efforts.
In the late 19th century, the number of Supreme Court justices was changed several times to change the outcomes of certain court decisions. One of the most infamous cases of this occurred in the 1930’s, when President Franklin Roosevelt attempted to expand the number of justices on the court after significant parts of his New Deal program were found to be unconstitutional.
Still, Kay says that there are ways in which the current era is completely unprecedented for the Supreme Court.
“I started doing constitutional law when I got right out of law school, which was 1974. But I’ve never seen a time when the Supreme Court has been held in such low regard by the public,” he said.
The court was seen as independent of politics, but that view has changed, Kay said, adding that several factors have led to the shift, including the actions of the court itself, political actors who have increased partisanship on and around the court, and the advent of social media that has allowed millions of people who otherwise wouldn’t be able to voice opinions about the court to be heard.
Despite the differences in the current era, Kay is not convinced that the court will respond to public opinion regarding the need for reform.
“I don’t think they’ve had to for most of its existence,” he said. “The only question is whether that will continue now. And, you know, if they want to dig in [and fight against reform], they are probably able to do so, even though they would be unpopular.”