‘These Are Very Moderate Proposals’: Fix The Court Director Advocates For Biden SCOTUS Reforms

last month

On "Forbes Newsroom," Gabe Roth, Executive Director of Fix the Court, speaks to Forbes Senior Law Editor Liane Jackson about the support for President Biden's proposed Supreme Court reforms.

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Transcript

00:00out of the gate, what did you think about sort of the tough tone that President Biden

00:06took towards what needs to happen with the court?

00:08Some of his words saying what's happening with the court right now is not normal.

00:13Yeah, I mean, there's no doubt in my mind that he is correct.

00:17I mean, having a recent opinion earlier this month where six justices on the Supreme Court

00:25effectively sanctioned, permitted presidential wrongdoing because they believe that a president

00:32is above the law, that is not normal.

00:34In the past, we had cases from Nixon to Clinton to even some of the earlier Trump

00:40taxes cases that were unanimously decided against a president.

00:48So that case was obviously a turning point for President Biden.

00:54It's been reported that he spoke to Supreme Court expert Larry Tribe, who is President

00:59Obama's Harvard Law professor.

01:01After that decision came out, the Trump U.S. decision came out on July 1st, and that, I

01:06think, sort of helped cement his views on what reform needs to look like.

01:10And look, I'm very pleased that he has chosen two of the reforms that have been championing

01:14for the better part of a decade, 18-year term limits for Supreme Court justices and an

01:18enforceable ethics code.

01:20Is there any reason that either party should be opposed to this?

01:24I mean, the majority of the American public has a crisis in confidence with the court

01:29and a lot of the decisions that have rolled back precedent and what is currently a conservative

01:35supermajority that has moved from the moderate middle.

01:39Is there any reason that either the Republicans or the Democrats should feel that term limits

01:44or an ethics code would be sort of a negative for the court?

01:49Yeah, I mean, look, these are very moderate proposals, and these are proposals that polling

01:53that I started doing 10 years ago, 70, 80 percent of Americans identifying as liberals

02:00and conservatives support.

02:0318-year term limits just mean more regularity to the Supreme Court appointment process.

02:08If, you know, God forbid, Sam Alito died tomorrow, he'd be replaced by a liberal.

02:16And just like when Antonin Scalia died, he was, well, actually, sorry, Ruth Bader Ginsburg

02:22died.

02:22Antonin Scalia was not replaced by a liberal.

02:25When Ruth Bader Ginsburg died, she was holding on, you know, so Alito and Thomas, theoretically

02:30right now, are holding on to a point in time in which a president with whom they agree

02:36sits in the White House.

02:36Similarly, Justice Ginsburg waited for a president with whom she agreed to sit in the White House

02:42and so did Justice Scalia, and it didn't work out for the two of them.

02:46You know, but it is, it could work out for Alito and Thomas.

02:50And this idea that, you know, there's a Scalia seat or a Ginsburg seat or a Thomas seat or

02:54a Alito seat, that's not how it should be.

02:56These are seats that belong to the American people.

02:59And having a justice pick their successor shouldn't be kosher, and we should just have

03:04a regular rotation of who, of the justices.

03:08There's no sort of extra, you know, out-of-this-world judicial or legal insight that any justice

03:15by getting crusty and serving on the court for 30 or 35 years, as is becoming the norm.

03:20Having justices that reflect modern times, whether those times are liberal or conservative,

03:25I think is critical.

03:27And currently having a justice in Justice Thomas, just to give the most obvious example,

03:31because he served on the court the longest, who was put into his office by someone who

03:38left the presidency on January 20th, 1993, when I was 10, doesn't make a lot of sense.

03:45So, you know, these proposals are politically neutral.

03:49It's not something that you might hear from someone like, say, Mitch McConnell.

03:53But over time, even in the short term, term limits would not favor one party or another.

03:57Neither would ethics reform.

03:58I mean, having a complaint process for the justices wouldn't favor one side or the other.

04:03It's just, I don't know, be ethical, and then you have nothing to worry about.

04:07Yeah, there's no benefit or practicality that most experts see in not having, for example,

04:13an ethics code for the Supreme Court.

04:15Or also speaking of not normal, most other countries don't have lifetime appointments

04:19for the highest court in the land, which is an undemocratic institution of all of our,

04:25the most undemocratic of all of our institutions, in that you have a lifetime appointment.

04:28Nobody's elected to this position.

04:29And as you said, it's very politicized.

04:31So the idea that we are an outlier in sort of the Western world and democratic societies

04:38in the way the Supreme Court holds, has recently also hold undue influence, disproportionate sway

04:45over our legislature, even the executive branch.

04:49Do you feel like there's any, you know, the idea that an ethics code is necessary?

04:55Why would there be any opposition to that?

04:58Yeah, no, it's, it doesn't make a lot of sense.

05:02And look, I mean, I think there might be an argument from the left saying,

05:06these reforms don't go far enough.

05:08They're not disempowering reforms to the extent that certain things like maybe jurisdiction

05:14stripping, or even court expansion might be, I, you know, personally don't like court expansion.

05:19I think it's sort of a seeds to the notion that we're a juristocracy and just like six

05:24conservative justices are saying how things should be now, then maybe seven liberal justices

05:30or 27 liberal justices, I don't know, would would sort of, you know, lead the country

05:35in terms of politics and policy.

05:36I'd rather it be the people through our elected representatives who do that.

05:40You know, that's why I don't like court expansion.

05:42But in terms of ethics, specifically, yeah, there really shouldn't be any opposition.

05:47And if you look at the history of this issue, you know, during the post-Watergate period,

05:52when there was a lot of good government reforms, the Ethics in Government Act passed with bipartisan

05:57majorities.

05:58And that was an ethics reform where lower court judges had some say and sway over how

06:03financial disclosure reports for the justices were filled out.

06:07So, you know, that's sort of an ethics enforcement mechanism that exists to this day that is

06:12carried out by lower court judges.

06:14And there is even another one that what happens now when you file a complaint against the

06:17lower court judge is that a council of the judge's peers will adjudicate it and say,

06:22I mean, 98 percent of them are frivolous.

06:23So, you know, don't get me wrong.

06:24This is not, you know, a huge problem.

06:27But about 1,400 are filed each year.

06:29And you have a council of, if it's meritorious, the dozen or so that are meritorious, you

06:34have a council of the judge's peers that are deciding, OK, does someone need to return

06:38a gift?

06:38Does someone need to recuse from a case?

06:40Does someone need to take ethics training classes?

06:44Putting the justices into a rubric like that was actually envisioned at the time of this

06:48post-Watergate changes.

06:50But the justices successfully, 45 years ago, lobbied against their inclusion in the bill.

06:55Hopefully, that wouldn't happen again.

06:58But, you know, bipartisan majorities passed a bill.

07:02Again, the president didn't end up signing it.

07:04The House didn't end up passing it.

07:05But bipartisan majorities passed a bill that would have that ethics requirement, that sort

07:09of judicial counsel adjudication that I described, apply to the justices.

07:14There's no reason we can't bring it back.

07:16It seems like President Biden wants to bring it back.

07:18It seems like, who, by the way, voted for that bill back in 1977.

07:21Justice Kagan last Thursday said she would also similarly like to see a committee of

07:26judges that, when a complaint arises, would look into whether or not a justice has, in

07:31fact, violated their oath of office or violated the ethics canon.

07:35So it's not hard to do.

07:36And the opposition is just seemingly grasping at straws because it's really not any sort

07:42of — it would be a major change in that nothing like this has happened before.

07:47But in terms of the structure of the court, it wouldn't really change anything.

‘These Are Very Moderate Proposals’: Fix The Court Director Advocates For Biden SCOTUS Reforms

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