Penn Law Professor Breaks Down The Potential SCOTUS Reforms That President Biden May Endorse

2 months ago

Constitutional Law Professor Kermit Roosevelt joins Forbes Senior Editor Maggie McGrath on "Forbes Newsroom" to discuss potential reforms to the Supreme Court that President Biden may endorse.

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00:00I'm Maggie McGrath with Forbes Breaking News. This week, reports emerged that President Biden

00:05is getting ready to endorse some changes to the Supreme Court. Here to explain what these changes

00:11are and if they're even at all possible is Kermit Roosevelt. He is a professor at Penn Law.

00:16Professor Roosevelt, thank you so much for joining us. Thanks for having me.

00:21So let's just start at the top. What are these changes that people are talking about and that

00:26some members of society want to see made to the Supreme Court?

00:30Well, we don't know exactly which changes Biden might endorse,

00:34but there are several out there that are getting the most attention. And I should say I was a

00:39member of President Biden's Supreme Court Reform Commission. So I was talking about these with

00:44other experts. And what I'm hearing is that he's most likely to suggest one or more of an enforceable

00:52ethics code, term limits for Supreme Court justices, or possible but least likely actually

00:58court expansion, adding justices to the court. Let's take those one at a time. You say ethics

01:04code and, you know, businesses have ethics codes. Other parts of government have ethics codes.

01:10Does the Supreme Court not have a code of ethics right now? What's what's the deal?

01:14Well, it really doesn't. So there's for a long time been a code of ethics for federal judges,

01:21which sets out things that they're not supposed to do, and maybe most importantly,

01:26circumstances under which they should recuse themselves. They should not hear particular cases

01:31if their impartiality could reasonably be questioned. And that code actually does say

01:36that it applies to the Supreme Court. But the Supreme Court for a long time said,

01:40no, you can't bind us. We're too important, basically. And then they also said for a while,

01:46you know, but we follow this code on our own. And then it turned out they really weren't doing that.

01:50Some of the revelations about Clarence Thomas, some of the behavior by Samuel Alito really

01:55seems to violate the code that binds all the other federal judges. So partially in reaction

02:00to outrage about that, the Supreme Court then said, we've got an ethics code now. Like we've

02:06written our own ethics code, but no one else can enforce it. You know, we're going to enforce it

02:11ourselves. So again, they were saying no one else can tell us what to do. And, you know,

02:15here's this code and maybe we'll follow it. Maybe we won't, but no one can do anything

02:20if we don't. And obviously that's not a good look for the court. And I think it's sort of

02:25problematic as a state of affairs for one branch of our government to be saying, we're basically

02:31the only people who can decide whether what we're doing is okay or not. So I have a lot of sympathy

02:37for the idea of an enforceable ethics code. I think the details might get a little bit tricky

02:43because it actually is a pretty big step for Congress to say to some Supreme Court justices,

02:49you can't decide this case. So I'm not sure what the details will be like.

02:56Okay. I was just about to ask because you use the phrase enforceable ethics code and you just

03:00mentioned Congress. So is Congress the most likely entity to be the one to enforce that?

03:04If that were to go in place? Well, Congress would be the one to write it. So one thing to keep in

03:11mind is most of this will get to term limits, but most of this is going to be done through

03:16ordinary legislation. So it has to pass both houses of Congress and it has to be signed by

03:20the president. And Biden is now saying I'm willing to do this, but the Republican controlled house

03:26is presumably not. So none of this will happen before the election. None of this will happen

03:33if Biden is not elected. None of this will happen if the Democrats don't get control of both houses

03:38of Congress. So this is sort of a campaign promise that Biden is making. Not I'll do this now,

03:45but if you reelect me and we get control of Congress, I'll do this.

03:50So it's more like a liberal wishlist at this point in time.

03:54Yeah. I think strategically what's going on is Biden is reaching out to the progressive

03:58wing of his party, which has long wanted court reform. And he's been resistant to that. He's

04:03been more of a centrist institutionalist.

Penn Law Professor Breaks Down The Potential SCOTUS Reforms That President Biden May Endorse

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