President Biden's belated push for unattainable (and ineffective) reforms only drives home the opportunities he's missed to change the national conversation about the Supreme Court
I’ve proposed countless better ways to frame conversations about how to reform the Court, and specific reforms that would move the ball forward, in prior issues of this newsletter—many of which are linked to in this one.
I'm swayed by Vladeck's points and frustration but I can't help to go a bit further with my own frustrations and concerns. Much is made of Trump's threat to democracy and rightfully so but I feel we may already have lost it to the Supreme Court. The immunity decision just cements what I have been thinking for a long time: six Supreme Court justices feel they are above the Constitution, they have come to the realization that there are no consequences for the rulings they have handed down and that there will be no consequences for the rulings they will hand down in the future. As long as Congress is divided and unable to function there are no guard rails on SCOTUS and I fear that future rulings will only get to be more bizarre and authoritarian.
Biden has published an Op Ed in today's WAPO that deals broadly with the Reforms and the Scope of Presidential Immunity. The Op Ed makes clear that it is a political policy statement not intended to become law overnight. What is interesting is that none of the Comments address the merits of the ideas that Biden has advanced; the few comments that attack the idea invoke the usual babble about a LEFTIST BIG State and stolen elections.
I agree with the points you make in this essay. You've used your experience and knowledge to make cognizant points. Unfortunately, this is the world of politics. Yes, these proposals are being put out there for political purposes, and I don't have a problem with that. This is an opening salvo to begin a discussion. It sends a message to this Supreme Court, one that most members will ignore, that voters are not happy. But it's making your first move with your pawn. Any significant changes to the Supreme Court (and personally I'd like to see the number of Justices expanded) will take time and many hours of political lobbying and compromises. Yes, it'd be great if after President Biden's Commission we all had meaningful discussions about the problems of the Supreme Court and possible solutions. That too, would have been met with resistance and claims of it all being political - that is unavoidable. And it isn't just Biden who's passed the ball on this. I'm 72 and don't remember any President in my lifetime who took on Supreme Court reform, although I admit I may have missed somethings. I'm a retired academic (>35 years) and associate dean in a business school (>25 years). No major change to curriculum or policy or budgets or anything else in the business school was handled in a calm, quick non-political way. And no, you can't count on business faculty to be impartial or to even understand how the business of operating a business school really works. Many times I'd throw an opening salvo (on behalf of the Dean but I was the front person so I took the heat), and I'd keep chipping away at it, lobbying faculty, making changes and compromises, for a year or more before we had the votes to pass anything. It is a thousand times more difficult in Congress.
One relatively minor but I think still important note. I wouldn’t use “inexplicable” to refer to the linked-to example of judicial misconduct. It’s sexual harassment, which is unfortunately entirely explicable, particularly in situations where harassers think they have unchecked power. That supports your larger point, so again, I think it’s a matter of a better word for at least that type of misconduct.
While there is merit to some Professor's Vladeck comments, the case for reform is not nearly as dim as he makes it. First, no one thought the reforms outlined by the Biden Supreme Commission could be implemented overnight. This is a political statement and will certainly become a part of the Democratic Platform regardless of who is nominated. Second, Vladseck and Biden both miss the one proposal that can be enacted----by a Democrat Administration. The plan to increase the size of the Court to 13 AND to mandate that there shall be one member from each Circuit could be implemented immediately. Third in that arrangement, the term limit issue is resolved by specifying that at the end of the Supreme Court term the Justice does not retire; rather , the Justice returns to the Circuit from which he or she came and can sit or take senior status as she or he sees fit.
> The plan to increase the size of the Court to 13 AND to mandate that there shall be one member from each Circuit could be implemented immediately.
Expanding the Court would rely on a *full* Democrat Administration, in terms of both House and Senate-controlled, and a Democrat President, and an end to the filibuster. It would also be a blatantly political. I'm also not sure if requiring one member be from each Circuit would work, as that may be a qualification that is impermissible. (It also opens up the question of how the office of Chief Justice would work, as there are currently 8 Associate Justice seats and a Chief Justice seats; but that's less pressing.) Even if no future administrations wanted to reverse the Circuit-SCOTUS seat link (which they would not; this would almost certainly just let the "genie out of the bottle" for Court expansion), it would simply make the Circuits greater aim for manipulation, creating or modifying existing ones to add seats or change the selection pools.. With the end of the "Blue Slip" rule for Appellate Courts, linking to Circuit membership (if Constitutional) really would do little, anyways, since any Circuit can be filled with appointees who simply move there to be appointed and then are appointed to the SCOTUS. There is also the question of how that interacts with current Justices, which I address next.
> Third in that arrangement, the term limit issue is resolved by specifying that at the end of the Supreme Court term the Justice does not retire;
Vladeck has little concern about the Constitutionality of term limits. The issue is that such term limits could only be used for future Justices, not current Justices. Even if a 13-Justice Court linked to Circuits did pass (and was held to not be an Unconstitutional qualification), the current Justices would likely have to retain their seats, which means the SCOTUS and the President would be asking Congress and the public to accept expanding the Court not by 4, but by 13 (unless the Circuit-linked seats were phased in with retirements or over a number of years). Attempting to make the current Justices fit into the new seats would be problematic both because 4 share the same Circuit (Roberts, Kavanaugh, Thomas, and Jackson all were elevated from DC CCA) and because that would be pushing them into a new, time-limited seat, which Vladeck believes would not pass muster because it would be changing what they were appointed to.
Questionably the enlargement plan would be controversial especially among putatively conservative Senators from smaller states and it would NOT apply to sitting Justices. But the current "method" of Confirming Judges is hopelessly political. Historically the official position of the Democrat Caucus was that they should not use the Blue Slip to block appointees by a President of the other party. That is long gone because what used to be the Republican Party has abandoned any pretense of applying objective standards to appointments on Federal Courts, as is evident from the refusal to even hold a hearing on Garland and then cramming through Barrett. I have not checked recently but as of end of last year, Cruz and Hawley had not voted for ANY Biden Nominee .If nothing else, the Biden Commission---which was bi-partisan in composition---would be a step in the direction of reducing political ideology and utter indifference to Ethics into the system.
> Questionably the enlargement plan would be controversial ... But the current "method" of Confirming Judges is hopelessly political.
While it's true that confirming Justices right now is very political, expanding the Court by 13 (eventually reduced to 4) would basically be asking for the current President at the time of the law taking effect to be given the ability appoint a majority of the Court, which is hard to not take as politically motivated.. If there's no staggering of the terms, it would also be rather... concerning. Because if all 13 seats are created at once, you either have to have their starts or ends be staggered every year or 2 years (with 13 Justices, two year staggering would mean you have 26 year terms, which isn't really an improvement), or you have the awkwardness of all 13 seats probably transitioning to "Circuit Mode" all at once, and then a new POTUS gets to appoint a majority- which will eventually become the entirety of the Court. Now, resignations, moves to Senior status, and untimely deaths will cause them to naturally split apart... to some degree. But there is always the possibility that it becomes a problem logistically.
> Historically the official position of the Democrat Caucus was that they should not use the Blue Slip to block appointees by a President of the other party.
Which is neat and all, but my reasoning for bringing up blue slips was to point out that they're gone (for Appellate Courts), which means that linking seats to Circuits does very little. You can just ship out Judges or Lawyers to a given Circuit, and with the Blue Slip rule voided for CCAs, you can easily just put someone on the Circuit Court and then turn around and confirm them to the SCOTUS immediately.
Heck, you might not even have to appoint them. Just fly a lawyer you like out to one State, get an apartment, and then appoint them to that Circuit's SCOTUS seat. Of course, I'm still skeptical if you could actually link it to Circuits, other than making it so that their post-SCOTUS duties pertain to a given Circuit; or if that would be an Unconstitutional qualification.
> If nothing else, the Biden Commission---which was bi-partisan in composition---would be a step in the direction of reducing political ideology
But it was your Circuit-SCOTUS linking proposal that we were discussing, and that I was saying it would be obviously politically motivated. Reform in general would be easier to sell Democrats in Congress and the public of all affiliations; but a blanket membership reform that means the incumbent POTUS suddenly getting to appoint a majority of the Court? Gonna be a hard sell, no matter how much you think a given party has been screwed.
Steve, quite separately, when you write about the immunity decision, I hope you include a discussion of the court's view of whether a president can be inducted for taking a bribe to appoint or pardon someone. I was quite surprised that in footnote 3, the majority says yes. I was also less than satisfied the way Barrett and Sotomayor handled this question. I can add more if you like.
It would also be good to explain the relationship of footnote 3 to Robert's statement that the Dissent is based on "extreme" hypotheticals unlikely to ever arise. If Footnote 3 is part of the governing standard, why didnt Robert's refer to it directly. The concern is that Footnote 3 will be treated as dicta and ignored by the majority in cases less extreme than shooting a man on 5th Avenue. EG as in the 34 count conviction of the Republican Nominee.
There are significant implications of fn 3 in allowing such a bribery prosecution, most notably impliedly that bribery is private conduct. And i think the Supreme Court clearly did not want to go down that road, including dealing with the farce of the evidently standard they established.
The problem is that the grant of pardons is exclusive to the President and therefore "preclusive " and Roberts says very clearly that the absolute immunity applies to such preclusive powers. Footnote 3 could mean that there are some acts related to official duties that are private and therefore although preclusive are not covered by the immunity. IF that is what is meant then it certainly means that illegal acts like falsifying State Financial Reports by a Candidate are not immune. or falsely seeking to invalidate the election returns. This could get interesting. I hope that Professor Vladeck does address the issues.
What a disheartening way to start the morning, although I totally agree with your analysis. It is a shame that this is behind the paywall because it would be a good one for public consumption as a lucid, short-hand introduction for folks who may not yet be tuned in to what has been happening with the Supreme Court for some time now.
But I really hated your example of the percentage chance of a constitutional amendment being 0.0%, although I again agree with your prediction since, at 74, I still think the Astros might reach out to me to be the next voice of the Astros.
So useful all this "constructive" criticism. Thanks so much for moving things forward.
I’ve proposed countless better ways to frame conversations about how to reform the Court, and specific reforms that would move the ball forward, in prior issues of this newsletter—many of which are linked to in this one.
I'm swayed by Vladeck's points and frustration but I can't help to go a bit further with my own frustrations and concerns. Much is made of Trump's threat to democracy and rightfully so but I feel we may already have lost it to the Supreme Court. The immunity decision just cements what I have been thinking for a long time: six Supreme Court justices feel they are above the Constitution, they have come to the realization that there are no consequences for the rulings they have handed down and that there will be no consequences for the rulings they will hand down in the future. As long as Congress is divided and unable to function there are no guard rails on SCOTUS and I fear that future rulings will only get to be more bizarre and authoritarian.
Biden has published an Op Ed in today's WAPO that deals broadly with the Reforms and the Scope of Presidential Immunity. The Op Ed makes clear that it is a political policy statement not intended to become law overnight. What is interesting is that none of the Comments address the merits of the ideas that Biden has advanced; the few comments that attack the idea invoke the usual babble about a LEFTIST BIG State and stolen elections.
I agree with the points you make in this essay. You've used your experience and knowledge to make cognizant points. Unfortunately, this is the world of politics. Yes, these proposals are being put out there for political purposes, and I don't have a problem with that. This is an opening salvo to begin a discussion. It sends a message to this Supreme Court, one that most members will ignore, that voters are not happy. But it's making your first move with your pawn. Any significant changes to the Supreme Court (and personally I'd like to see the number of Justices expanded) will take time and many hours of political lobbying and compromises. Yes, it'd be great if after President Biden's Commission we all had meaningful discussions about the problems of the Supreme Court and possible solutions. That too, would have been met with resistance and claims of it all being political - that is unavoidable. And it isn't just Biden who's passed the ball on this. I'm 72 and don't remember any President in my lifetime who took on Supreme Court reform, although I admit I may have missed somethings. I'm a retired academic (>35 years) and associate dean in a business school (>25 years). No major change to curriculum or policy or budgets or anything else in the business school was handled in a calm, quick non-political way. And no, you can't count on business faculty to be impartial or to even understand how the business of operating a business school really works. Many times I'd throw an opening salvo (on behalf of the Dean but I was the front person so I took the heat), and I'd keep chipping away at it, lobbying faculty, making changes and compromises, for a year or more before we had the votes to pass anything. It is a thousand times more difficult in Congress.
So disappointing from the WH. After getting my hopes up after seeing the headlines, this was a gut punch.
I view what the Post described as a sign of some desperation if in fact the WH announces these proposals. Perhaps someone there reads Steve’s work.
Speaking the truth, no matter how disappointing it is. Your opinion should be sent to the DNC.
One relatively minor but I think still important note. I wouldn’t use “inexplicable” to refer to the linked-to example of judicial misconduct. It’s sexual harassment, which is unfortunately entirely explicable, particularly in situations where harassers think they have unchecked power. That supports your larger point, so again, I think it’s a matter of a better word for at least that type of misconduct.
While there is merit to some Professor's Vladeck comments, the case for reform is not nearly as dim as he makes it. First, no one thought the reforms outlined by the Biden Supreme Commission could be implemented overnight. This is a political statement and will certainly become a part of the Democratic Platform regardless of who is nominated. Second, Vladseck and Biden both miss the one proposal that can be enacted----by a Democrat Administration. The plan to increase the size of the Court to 13 AND to mandate that there shall be one member from each Circuit could be implemented immediately. Third in that arrangement, the term limit issue is resolved by specifying that at the end of the Supreme Court term the Justice does not retire; rather , the Justice returns to the Circuit from which he or she came and can sit or take senior status as she or he sees fit.
> The plan to increase the size of the Court to 13 AND to mandate that there shall be one member from each Circuit could be implemented immediately.
Expanding the Court would rely on a *full* Democrat Administration, in terms of both House and Senate-controlled, and a Democrat President, and an end to the filibuster. It would also be a blatantly political. I'm also not sure if requiring one member be from each Circuit would work, as that may be a qualification that is impermissible. (It also opens up the question of how the office of Chief Justice would work, as there are currently 8 Associate Justice seats and a Chief Justice seats; but that's less pressing.) Even if no future administrations wanted to reverse the Circuit-SCOTUS seat link (which they would not; this would almost certainly just let the "genie out of the bottle" for Court expansion), it would simply make the Circuits greater aim for manipulation, creating or modifying existing ones to add seats or change the selection pools.. With the end of the "Blue Slip" rule for Appellate Courts, linking to Circuit membership (if Constitutional) really would do little, anyways, since any Circuit can be filled with appointees who simply move there to be appointed and then are appointed to the SCOTUS. There is also the question of how that interacts with current Justices, which I address next.
> Third in that arrangement, the term limit issue is resolved by specifying that at the end of the Supreme Court term the Justice does not retire;
Vladeck has little concern about the Constitutionality of term limits. The issue is that such term limits could only be used for future Justices, not current Justices. Even if a 13-Justice Court linked to Circuits did pass (and was held to not be an Unconstitutional qualification), the current Justices would likely have to retain their seats, which means the SCOTUS and the President would be asking Congress and the public to accept expanding the Court not by 4, but by 13 (unless the Circuit-linked seats were phased in with retirements or over a number of years). Attempting to make the current Justices fit into the new seats would be problematic both because 4 share the same Circuit (Roberts, Kavanaugh, Thomas, and Jackson all were elevated from DC CCA) and because that would be pushing them into a new, time-limited seat, which Vladeck believes would not pass muster because it would be changing what they were appointed to.
Questionably the enlargement plan would be controversial especially among putatively conservative Senators from smaller states and it would NOT apply to sitting Justices. But the current "method" of Confirming Judges is hopelessly political. Historically the official position of the Democrat Caucus was that they should not use the Blue Slip to block appointees by a President of the other party. That is long gone because what used to be the Republican Party has abandoned any pretense of applying objective standards to appointments on Federal Courts, as is evident from the refusal to even hold a hearing on Garland and then cramming through Barrett. I have not checked recently but as of end of last year, Cruz and Hawley had not voted for ANY Biden Nominee .If nothing else, the Biden Commission---which was bi-partisan in composition---would be a step in the direction of reducing political ideology and utter indifference to Ethics into the system.
> Questionably the enlargement plan would be controversial ... But the current "method" of Confirming Judges is hopelessly political.
While it's true that confirming Justices right now is very political, expanding the Court by 13 (eventually reduced to 4) would basically be asking for the current President at the time of the law taking effect to be given the ability appoint a majority of the Court, which is hard to not take as politically motivated.. If there's no staggering of the terms, it would also be rather... concerning. Because if all 13 seats are created at once, you either have to have their starts or ends be staggered every year or 2 years (with 13 Justices, two year staggering would mean you have 26 year terms, which isn't really an improvement), or you have the awkwardness of all 13 seats probably transitioning to "Circuit Mode" all at once, and then a new POTUS gets to appoint a majority- which will eventually become the entirety of the Court. Now, resignations, moves to Senior status, and untimely deaths will cause them to naturally split apart... to some degree. But there is always the possibility that it becomes a problem logistically.
> Historically the official position of the Democrat Caucus was that they should not use the Blue Slip to block appointees by a President of the other party.
Which is neat and all, but my reasoning for bringing up blue slips was to point out that they're gone (for Appellate Courts), which means that linking seats to Circuits does very little. You can just ship out Judges or Lawyers to a given Circuit, and with the Blue Slip rule voided for CCAs, you can easily just put someone on the Circuit Court and then turn around and confirm them to the SCOTUS immediately.
Heck, you might not even have to appoint them. Just fly a lawyer you like out to one State, get an apartment, and then appoint them to that Circuit's SCOTUS seat. Of course, I'm still skeptical if you could actually link it to Circuits, other than making it so that their post-SCOTUS duties pertain to a given Circuit; or if that would be an Unconstitutional qualification.
> If nothing else, the Biden Commission---which was bi-partisan in composition---would be a step in the direction of reducing political ideology
But it was your Circuit-SCOTUS linking proposal that we were discussing, and that I was saying it would be obviously politically motivated. Reform in general would be easier to sell Democrats in Congress and the public of all affiliations; but a blanket membership reform that means the incumbent POTUS suddenly getting to appoint a majority of the Court? Gonna be a hard sell, no matter how much you think a given party has been screwed.
Steve, quite separately, when you write about the immunity decision, I hope you include a discussion of the court's view of whether a president can be inducted for taking a bribe to appoint or pardon someone. I was quite surprised that in footnote 3, the majority says yes. I was also less than satisfied the way Barrett and Sotomayor handled this question. I can add more if you like.
It would also be good to explain the relationship of footnote 3 to Robert's statement that the Dissent is based on "extreme" hypotheticals unlikely to ever arise. If Footnote 3 is part of the governing standard, why didnt Robert's refer to it directly. The concern is that Footnote 3 will be treated as dicta and ignored by the majority in cases less extreme than shooting a man on 5th Avenue. EG as in the 34 count conviction of the Republican Nominee.
There are significant implications of fn 3 in allowing such a bribery prosecution, most notably impliedly that bribery is private conduct. And i think the Supreme Court clearly did not want to go down that road, including dealing with the farce of the evidently standard they established.
The problem is that the grant of pardons is exclusive to the President and therefore "preclusive " and Roberts says very clearly that the absolute immunity applies to such preclusive powers. Footnote 3 could mean that there are some acts related to official duties that are private and therefore although preclusive are not covered by the immunity. IF that is what is meant then it certainly means that illegal acts like falsifying State Financial Reports by a Candidate are not immune. or falsely seeking to invalidate the election returns. This could get interesting. I hope that Professor Vladeck does address the issues.
You'll have to admit, though, that is a great photo. It demonstrates that Biden is head and shoulders above them all.
Seriously, thanks for a thought provoking essay.
Now please give us something to smile about on Monday. We need it.
What a disheartening way to start the morning, although I totally agree with your analysis. It is a shame that this is behind the paywall because it would be a good one for public consumption as a lucid, short-hand introduction for folks who may not yet be tuned in to what has been happening with the Supreme Court for some time now.
But I really hated your example of the percentage chance of a constitutional amendment being 0.0%, although I again agree with your prediction since, at 74, I still think the Astros might reach out to me to be the next voice of the Astros.
Thank you for a dose of reality, Steve!