President Biden has proposed reforming a U.S. Supreme Court whose integrity has been tarnished, if not ruined, by its most conservative members.
The president embraced term limits and a binding ethics code for the justices. Most important, he called on Congress to pass a constitutional amendment to reverse the court’s mind-boggling decision giving presidents broad immunity from prosecution.
“What is happening now is not normal,” Biden wrote in an op-ed published by the Washington Post on Monday, “and it undermines the public’s confidence in the court’s decisions, including those impacting personal freedoms. We now stand in a breach.”
The conservative justices’ greed, conflicts of interest, dishonesty and deeply un-American interpretation of presidential power have led us to this moment. Not coincidentally, public confidence in the court has plummeted. Its approval rating is close to a record low, and its disapproval rating is near an all-time high.
“We are in an antidemocratic doom loop,” said Mike Sacks, a senior advisor at Court Accountability, a new left-leaning nonprofit whose mission is to “curb judicial corruption and abuse of power.”
It’s easy to see why esteem for the court has hit bottom.
Last year, ProPublica and other news outlets reported that Justice Clarence Thomas secretly accepted millions of dollars in gifts and luxury travel from rich, conservative benefactors with business before the court. As we know from her texts to then-White House Chief of Staff Mark Meadows, Thomas’ wife, Ginni Thomas, supported overturning the 2020 election. Despite this glaring conflict of interest, Thomas has not recused himself from cases related to the insurrection.
Justice Samuel A. Alito Jr., likewise, did not recuse himself from Jan. 6 cases even though his wife hoisted two flags at their homes that telegraphed sympathy for the insurrectionists and former President Trump, who still clings to the lie that Biden stole the election.
The three newest justices, Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett, misled the Senate during their confirmation hearings by either stating or implying that they believed the landmark case Roe vs. Wade was settled law. In 2022, they overturned it, unleashing a new kind of hell on American women of childbearing age.
In 2016, then-Senate Majority Leader Mitch McConnell blocked President Obama’s nomination of Merrick Garland to the court, making up a rule that no such appointments could be considered during an election year. Four years later, he turned around and shoved Barrett’s nomination through the Senate mere days before an election in which Republicans lost the presidency and the Senate.
The compromised court has imposed a radical vision on the country.
In 2013, in an act of almost unspeakable naivete, it gutted the Voting Rights Act of 1965, unleashing a wave of voter suppression that continues to this day. (“Our country has changed,” Chief Justice John G. Roberts Jr. asserted in his majority opinion, prompting Justice Ruth Bader Ginsburg to declare that dismantling the country’s most successful civil rights law was like “throwing away your umbrella in a rainstorm because you are not getting wet.”)
Last year, the court struck down affirmative action in college admissions, a practice that, like abortion rights, had been upheld and reaffirmed for nearly half a century. It also invalidated Biden’s student loan forgiveness program. This year, it kneecapped the power of federal agencies by tossing out a 40-year-old precedent known as the Chevron doctrine.
Most outrageously, the court effectively made the American president a monarch, ruling that those who hold the office enjoy sweeping protection from criminal prosecution.
“For all practical purposes,” Biden said Monday at the LBJ Presidential Library in Austin, “the court’s decision almost certainly means that the president can violate their oath, flout our laws and face no consequences.”
He paraphrased Justice Sonia Sotomayor’s dissent: “Under the majority’s reasoning, the president will now be insulated from criminal prosecution. Orders a Navy Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold on to power? Immune. Takes a bribe in exchange for a pardon? Immune.”
That is as nightmarish a vision of America as has ever been conjured.
“I have great respect for our institutions and the separation of powers laid out in our constitution, but what’s happening now is not consistent with that doctrine of separation of powers,” Biden said. “Extremism is undermining the public’s confidence in the court’s decisions.”
These powers need to be not only separated, but also rebalanced.
Reforming the Supreme Court will be a difficult, years-long project. But if we want to preserve democracy and the profoundly American ideal that no person is above the law, the court’s conservative justices have given us no alternative.
