Inside The Major Supreme Court Reforms Biden Is Reportedly Set To Endorse

2 months ago

On "Forbes Newsroom," UPenn Law Professor Kermit Roosevelt discussed the possible changes to the Supreme Court that President Biden is reportedly ready to endorse, and whether they can even be implemented.

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00:00Hi, everyone. I'm Maggie McGrath with Forbes Breaking News. This week, reports emerged

00:08that President Biden is getting ready to endorse some changes to the Supreme Court. Here to

00:13explain what these changes are and if they're even at all possible is Kermit Roosevelt.

00:18He is a professor at Penn Law. Professor Roosevelt, thank you so much for joining us.

00:23Thanks for having me.

00:25So let's just start at the top. What are these changes that people are talking about and

00:29that some members of society want to see made to the Supreme Court?

00:34Well, we don't know exactly which changes Biden might endorse, but there are several

00:39out there that are getting the most attention. And I should say, I was a member of President

00:43Biden's Supreme Court Reform Commission. So I was talking about these with other experts.

00:49And what I'm hearing is that he's most likely to suggest one or more of an enforceable ethics

00:56code, term limits for Supreme Court justices, or possible but least likely actually court

01:02expansion, adding justices to the court.

01:06Let's take those one at a time. You say ethics code and, you know, businesses have ethics

01:10codes. Other parts of government have ethics codes. Does the Supreme Court not have a code

01:15of ethics right now? What's what's the deal?

01:18Well, it really doesn't. So there's for a long time been a code of ethics for federal

01:23judges, which sets out things that they're not supposed to do. And maybe most importantly,

01:30circumstances under which they should recuse themselves. They should not hear particular

01:34cases if their impartiality could reasonably be questioned.

01:38And that code actually does say that it applies to the Supreme Court. But the Supreme Court

01:42for a long time said, no, you can't bind us. We're too important, basically.

01:48And then they also said for a while, you know, but we follow this code on our own. And then

01:52it turned out they really weren't doing that. Some of the revelations about Clarence Thomas,

01:56some of the behavior by Samuel Alito really seems to violate the code that binds all the

02:01other federal judges.

02:03So partially in reaction to outrage about that, the Supreme Court then said, we've got

02:08an ethics code now, like we've written our own ethics code, but no one else can enforce

02:13it. You know, we're going to enforce it ourselves.

02:15So again, they were saying no one else can tell us what to do. And, you know, here's

02:19this code and maybe we'll follow it, maybe we won't, but no one can do anything if we

02:24don't.

02:25And obviously that's not a good look for the court. And I think it's sort of problematic

02:29as a state of affairs for one branch of our government to be saying, we're basically the

02:34only people who can decide whether what we're doing is okay or not.

02:39So I have a lot of sympathy for the idea of an enforceable ethics code. I think the details

02:44might get a little bit tricky because it actually is a pretty big step for Congress

02:51to say to some Supreme Court justices, you can't decide this case.

02:57So I'm not sure what the details will be like.

02:59Okay. I was just about to ask because you use the phrase enforceable ethics code and

03:03you just mentioned Congress. So is Congress the most likely entity to be the one to enforce

03:08that if that were to go in place?

03:12Well, Congress would be the one to write it. So one thing to keep in mind is most of this

03:17will get to term limits, but most of this is going to be done through ordinary legislation.

03:21So it has to pass both houses of Congress and it has to be signed by the president.

03:25And Biden is now saying, I'm willing to do this, but the Republican controlled house

03:30is presumably not. So none of this will happen before the election. None of this will happen

03:37if Biden is not elected. None of this will happen if the Democrats don't get control

03:41of both houses of Congress. So this is sort of a campaign promise that Biden is making.

03:48Not I'll do this now, but if you reelect me and we get control of Congress, I'll do this.

03:54So it's more like a liberal wishlist at this point in time.

03:57Yeah. I think strategically what's going on is Biden is reaching out to the progressive

04:02wing of his party, which has long wanted court reform. And he's been resistant to that.

04:07He's been more of a centrist institutionalist. Now, you mentioned term limits, and this is

04:13something that has come up in other branches of government. And we saw in North Dakota

04:18legislation, local legislation, I should note, setting a maximum age for folks running for

04:24office there. It's obviously been in the news with President Biden's health and age as he

04:29runs for reelection. Does the political climate that we're in right now make that a more

04:34bipartisan issue and something that is more a piece of reform that is more likely to pass?

04:42Well, it used to have pretty broad bipartisan support.

04:46And the important thing to understand about term limits, I think, is it's not really a

04:51response to the problem of people getting too old.

04:54That would be an age limit, you know, and it would be a little bit ironic maybe for Biden

04:58to be pushing for term limits on that basis. And it's not even really a response to the

05:03problem of people serving for too long, although I think there is an issue with justices serving

05:09for 30 or even 40 years. The real problem that term limits is supposed to address is

05:15about the composition of the Supreme Court and the influence that each president has

05:20over the Supreme Court. So under our current system, how many appointments does a president

05:25get? No one knows. It could be zero, like Jimmy Carter. It could be three in one term,

05:31like Donald Trump. And how much influence a president has over the Supreme Court is

05:37sort of random. It's affected by whether a justice unexpectedly dies. And it's sort of

05:42controlled by the justices themselves, because they usually time their retirements so that

05:46their replacement will be appointed by a president who shares their values.

05:52So what that means is there's no predictable way in which the composition of the Supreme

05:58Court is tied to anything other than random chance and partisan behavior. And that's just

06:05not a good way to decide which of our two political parties gets to control the Supreme

06:09Court. So the founders, when they drafted the Constitution, they weren't thinking about

06:13political parties. They didn't imagine that two parties would be fighting for the Supreme

06:18Court as a power center within the government. But that's what's happening now. And everyone

06:23understands it does matter who the justices are. It matters whether a Democrat or a Republican

06:29appoints them. So it would make a lot more sense if we had a system where if you win

06:34a national election, like the Democrats win the presidency, they get to put two justices

06:39on the Supreme Court. And the point of term limits is if you take the justices off or

06:45move them to senior status or something like that every 18 years so that each justice has

06:50an active term of 18 years, then with a nine-member court, you get two vacancies per presidential

06:56term. Each president gets to appoint two justices per four-year term. And that way, each president

07:02has an equal impact on the composition of the Supreme Court. And I think that a lot

07:06of the problems that we're seeing now come from the fact that the court is so out of

07:11step with the American people. And it's out of step because we've got a 6-3 Republican

07:16supermajority, even though the Republicans have lost five of the last eight presidential

07:20elections. So term limits is really a sort of structural fix to that problem.

07:27The other policy proposal or reform that you hear in some parts of the political system

07:33are is expanding the court, which that, to me, feels like the most unlikely. But what's

07:39your view? I know that's been kind of a call we've heard out of the left over the last

07:43few years precisely because of that supermajority that you have referenced.

07:47Right. So I think that is the most unlikely, although I understand why people are calling

07:53for it. So if you agree with the analysis that I was giving you before about term limits

07:59and how it would make sense for control over the Supreme Court to be determined by whether

08:04or not you win presidential elections, then you can adopt term limits and you'll get there

08:11eventually. You know, if you follow the term limits plan, the court will come back in line

08:17with the American people in maybe 20 years because term limits wouldn't apply to the

08:22sitting justices for the composition of the court to even out. It's going to take a while.

08:26You have to somehow get rid of the over-representation of Republican justices. You

08:32have to just wait for them to retire. So if you don't want to wait 20 years, if you think

08:37the court is a current danger to American democracy, if you're really upset about some

08:42of its decisions and you think they're just beyond the pale and you want to bring it back

08:46right now to where it would have been if we'd been doing two justices per four year

08:51presidential term, then what you want to do is give the Democrats control. So that's what

08:56the court expansion would do.

08:59What is your opinion on the significance of the reports that indicate that President

09:03Biden intends to support reforms like this? Is this a really definitive moment in time

09:09that he's considering this?

09:11Well, it's definitely a big change for him. So when Biden created the commission on reform,

09:18I thought, that's great. You know, he's really taking this seriously. Cynical people said,

09:23no, commissions are where ideas go to die. And it turned out the commission did a pretty

09:28good job, I think, with its report. We weren't supposed to make recommendations and we didn't,

09:33although I think it was evident that term limits had the most support. But we gave a

09:38pretty good survey of what the options are. We said, here's what you could consider doing.

09:42And the administration really didn't seem to be motivated to take any action on that.

09:49So I think it's a big change. I think it's a positive change that Biden is now talking

09:54about supporting this, because, as I said, it used to be that constitutional law professors

10:01and scholars on both sides of the political spectrum did agree that term limits were a

10:06good idea. Once the Republicans got what looks like a durable supermajority, Republican support

10:13for that eroded because it started looking more like a partisan issue. And it would have

10:18a partisan effect and it would take away what seems otherwise a more or less permanent

10:22Republican majority. But I don't think the best reading of the Constitution is that the

10:27Republicans should forever control the Supreme Court. So I think you can have a nonpartisan

10:32argument in favor of term limits. Now, you mentioned the founding fathers weren't ever

10:39imagining that the political system would get this divisive and that we'd see so much

10:44fighting between the two parties over the Supreme Court. I want to zoom out a little

10:49bit and ask you how much about the court is settled law and was determined by the Constitution

10:55and how much more could it change? Because I think the idea of changes to the court,

11:01it's a little surprising if you really think about it in the context of history. Well,

11:07it is a little surprising, but maybe it shouldn't be as surprising as we think. So the Constitution

11:12says a few things about the Supreme Court. It says some things about its jurisdiction,

11:17although it does explicitly give Congress the power to make regulations and exceptions

11:21for the Supreme Court's appellate jurisdiction. And it says that the judges shall hold their

11:27office during good behavior, which is understood to be in life tenure. It doesn't say what

11:33size the Supreme Court should be. And actually the Supreme Court has changed in size over

11:38the years. It started out at six. It was increased up to nine. The Republicans made

11:44it 10 to give Lincoln an extra appointment after Lincoln was assassinated. They shrank

11:49it. A similar thing happened with Jefferson. Jefferson's opponents tried to deny him appointments

11:55by manipulating the size of the court. So it's happened. And actually some people would

11:58say that that's what the Republican Senate did when they refused to consider Merrick

12:02Garland. They shrank the size of the court to eight effectively, and then they brought

12:06it back up to nine to allow Trump to make an appointment. So changing the size of the

12:12Supreme Court, it is within Congress's power, and it has been done in the past. Nonetheless,

12:18people think that it's the most radical because I think it's the most partisan. It clearly

12:21looks partisan. Now, term limits, on the other hand, I've been saying that really is a nonpartisan

12:27good government solution to a problem that we have. Our appointments process for the

12:31Supreme Court just doesn't make sense. That, however, is a little more radical constitutionally

12:38speaking because there might be problems with the constitutional provision that says judges

12:44shall hold their office during good behavior. So if you said you're a Supreme Court justice

12:49for 18 years and then you're not a Supreme Court justice anymore, that would violate

12:54the constitution. And the way that people have tried to get around this is by saying,

12:59here's what it means to be a Supreme Court justice. You will sit in regular active service

13:04for 18 years, and then after that, you will do something else. You will maybe decide cases

13:10on the courts of appeals or something like that. And that's what retired Supreme Court

13:15justices do now. And the interesting thing about this proposal is that the U.S. Supreme

13:22Court has said a judge who takes senior status, which is what the justices do when they retire,

13:29is still a judge. They still hold the office. So it seems possible based on that precedent

13:35to say, well, we're going to move people to a slightly different set of job descriptions,

13:41but we're not removing them from the office of judge. And in fact, uh, you still address

13:47retired Supreme Court justices as associate justice. According to the Supreme Court, they

13:51are still Supreme Court justices. So it seems like technically maybe you could do this without

13:56a constitutional amendment, but that's certainly not clear.

14:00That is so interesting. So it is technically legal, but then there are technicalities that

14:05you would have to abide by to put those term limits in place.

14:08Yeah. And I think it would ultimately end up in court and ultimately the Supreme Court

14:13would be the one deciding it.

14:15Oh, well, that's a whole different puzzle. Yeah. And you know what some people, well,

14:21what some people have suggested is we don't think the Supreme Court is going to like the

14:25idea of term limits, so we should package them in a bill. And we say, here's the term

14:30limits. And if you invalidate term limits, then four seats are immediately added to the

14:35Supreme Court. So if you don't let us have term limits, we're going to do expansion.

14:40Oh wow. That's spicy for lack of a better word. That really sets up more political fighting.

14:48And I want to talk to you about recent polling. And when I say recent, it's not just this

14:52year. This is a trend that's been brewing over the past several years. Show that the

14:57American public doesn't have the most favorable view of the Supreme Court. And that's a big

15:04change from when I was a kid and 10, 20, 30 years ago. What was the precipitating factor

15:10in your view in the decline in public opinion of the Supreme Court? And is it ever likely

15:16to go back to more neutral, uncontroversial territory?

15:21Well, I think there's a pretty clear answer as to why the American public views the Supreme

15:26Court as negatively as it does. And part of it has to do with the ethical violations,

15:31which are just a bad look. I mean, whatever you think about what effect it has on his

15:37decisions, and I think probably the effect is pretty small if it exists at all. It just

15:41looks very bad for Justice Thomas to be going on these fancy vacations with the multibillionaires

15:47who actually have interest in cases before the court. So that's bad. That's one thing.

15:52I think what's more important is that the Supreme Court looks more and more as though

15:59it's representing a pretty extreme ideology that's held by a pretty small minority of

16:04the American people. So the Supreme Court looks like it's out of step with mainstream

16:10American public opinion and also mainstream American constitutional thinking. And there's

16:15a reason for that, which is that you've got this 6-3 supermajority, even though Republicans

16:23lost five of the last eight elections. And if you'd been following the presidential elections,

16:28we should have, in fact, a 6-3 Democratic majority. So what that means is the Supreme

16:34Court is pretty far away, six justices away, from where it would have been if we'd been

16:40giving each president two appointments per four-year term. And the last time it was this

16:44far away, so this is almost unprecedented in American history, the last time it was

16:49this far away was when it decided the Dred Scott case in 1858. So I think there's a lesson

16:56to be taken from this, which is when the Supreme Court gets too far away from mainstream American

17:02public opinion, it starts to advance views that the American people don't like. And understandably,

17:08they react against that.

17:10I just got goosebumps because that indicates to me that some of the more unpopular decisions,

17:16not just from this term, obviously, we saw the outcry over the Chevron case. But if you

17:20go back two years to Dobbs, Roe v. Wade could still be law if these reforms had taken place,

17:29in your view?

17:30Yes. Yes, absolutely.

17:33What would the ability of the court be if these reforms were to take place going forward,

17:38to change some of these recent decisions? We saw, I mentioned the Chevron case, we saw

17:43some other decisions that were effectively non-decisions on matters of reproductive health.

17:48Would term limits or an expanded court go back and review those cases, or would it just

17:53affect the cases yet to be argued?

17:57Well, that's always up to the justices. And the Supreme Court as an institution, I think

18:04generally, they don't like to look as though the outcome is changing just because the judges

18:10have changed, because that makes it look like it's the judges and not the law. So that's

18:16one of the reasons, the sort of institutional self-preservation, that the Supreme Court

18:21usually follows the doctrine of stare decisis, and it's reluctant to overrule prior decisions

18:26without a good reason. But of course, we've just seen a whole bunch of decisions abandoning

18:32the principle of stare decisis and overruling earlier decisions that were fundamental to

18:38the structure of American society and that people had relied on for 50 years, like Roe

18:42v. Wade. So the goal of people proposing these reforms is, I think, pretty clearly to roll

18:48back those decisions. And it could very well happen. It would be up to the justices.

18:56Now I wanted to ask you, because you wrote a book whose title is, in part, The Myth of

19:00Judicial Activism. So we've talked about the politicization of the court and the way

19:05the general public is, you know, it's not as popular among the general public because

19:10some of these decisions are so out of step with general polling. So why is judicial activism

19:17a myth? And is that different than the politicization of the court?

19:21Well, those are great and complicated questions. So my argument in the book was that lots of

19:29constitutional questions don't have clear answers. And what happens when the court confronts

19:36a question like that is it often has to decide whether it's fair or reasonable to treat people

19:43in a certain way, or whether a right is sufficiently important to be protected by the Constitution.

19:48And it's not just writing on a blank slate when it addresses that question, because Congress

19:55and the President, if you're talking about a federal law, have expressed their view.

19:59Or a state legislature, if you're talking about a state law. The state legislature and the state governor

20:03have expressed their view. They pass a law and they're like, we think it's fair to treat women

20:08this way, or we think it's appropriate to treat gay people this way. And then the Supreme Court

20:13is going to decide, ultimately, sort of whether or not it agrees with that decision.

20:22But primarily, I think, how much weight it's going to give the views of these other government actors.

20:28Whether it's going to defer to them or not. And if you go through the very complicated

20:33doctrine and the tests that the Supreme Court uses, a lot of it boils down to this question,

20:38do we defer? Do we trust the judgment of the people whose actions we're reviewing, or do we not?

20:45And so the thesis of my book was, you can ask whether the court has a good reason to trust the people,

20:52to defer to them, or not. And if there's a good explanation for why it's either said,

20:59we trust you, we're going to let you do what you want as long as it's not totally crazy,

21:03or when they've said, we don't trust you, we're very suspicious of what you're doing in this area,

21:07if there's a good reason for that, it's not activism. If there isn't a good reason,

21:12then maybe you could call that activism. And sort of the point of the book was that a lot of the decisions

21:19people criticize as activists, like Brown v. Board of Education was one, Obergefell was one,

21:24Roe, of course, was one. A lot of those decisions, you can actually tell a pretty good story

21:29about why it doesn't make sense to leave that up to the political process.

21:33Whereas with a lot of the more recent Supreme Court decisions, I don't think that's true.

21:39So I don't think you can tell a very good story as to why judges shouldn't defer to experts

21:44about what level of particulates is safe. That's an area where deference is appropriate.

21:50And when judges are like, we're going to make that decision ourselves, that's activism.

21:55That's a very good explanation. And I see how it's different than the partisan politicization arguments,

22:04but they are different things. But when you talk about experts, you could argue that the Supreme Court

22:09might need to listen to doctors a little bit more than they've been listening to doctors.

22:14You could. And that was actually a big part of the initial Roe opinion.

22:18It was not so much grounded in a woman's right to choose as it was in deference to medical expertise.

22:23That's Harry Blackmun's version. And a quality-based argument came along later.

22:29Well, we could talk for hours because the Supreme Court has been so in the news recently.

22:34But I will end with one final question, wrapping up where we are right now.

22:39What are you watching for at this moment in time, July 2024?

22:43What can we expect in terms of changes to the Supreme Court or anything else

22:48that President Biden might say as he campaigns for his second term?

22:52Well, I'm watching the election, really. So like I said, there's no chance that any of this happens before the election.

22:59What Biden is doing is making a promise for the future.

23:03So, you know, the key question is whether Biden wins.

23:06And there's uncertainty as to whether he's even going to be the candidate.

23:10So I think we need to see what the Democratic Party does.

23:14And I hope that they can get together and coalesce around court reform,

23:20because I think that's a great idea.

23:23Kermit Roosevelt, thank you so much for joining us today.

23:26We so appreciate your explanations on all of this.

23:29Thanks for having me.

Inside The Major Supreme Court Reforms Biden Is Reportedly Set To Endorse

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