by David Crisp
When I was a cub reporter, still wet not only behind the ears but from the peak of the hair I once had to the soles of my feet, I interviewed a school board candidate who then gave me a tub of honey his bees had produced.
I was too embarrassed to refuse it, but my editor said not to worry. The honey was so old and thick that the guy probably was just trying to get rid of it.
The point is that nearly 50 years ago in the backwoods of East Texas, journalists held themselves to higher ethical standards than the U.S. Supreme Court does today. Any reporter who accepted without disclosing even a tiny fraction of the grift Clarence Thomas wallows in would be immediately invited to pursue other career opportunities, such as going to law school.
So, I was interested in President Biden’s three-pronged proposal to reform the Supreme Court. He wants to reverse the court’s recent decision granting immunity to presidents; he favors term limits for justices; he would impose a code of ethics on the court.
The first would require a constitutional amendment. The second should, and the third could be an act of Congress. Judging from the responses in the Billings Gazette of Montana’s incumbent and aspiring candidates for Congress, none of the reforms is likely to pass.
Democrats were at least willing to consider the proposals. Republicans mostly agreed with Donald Trump’s Truth Social post that the reforms amounted to “an illegal and unconstitutional attack on our SACRED United States Supreme Court.”
To be clear, the Supreme Court is neither SACRED nor sacred. As Sheriff Cooley explained in the movie “O Brother, Where Art Thou?” when he ordered three men hanged without trial: “The law? Law is a human institution.”
Tim Sheehy, running for the Senate, said Biden’s proposal was meant to turn the court into a “fast track for progressive legislation,” even though nothing in Biden’s plan is partisan.
Sen. Steve Daines and Rep. Ryan Zinke saw the proposal as a first step toward packing the court with liberal judges. Packing the court with additional justices is a bad idea, and Biden does not propose to do that.
House candidate Troy Downing called the proposal an “attempt to destroy the Supreme Court.” He did not explain how, perhaps because he couldn’t.
Rep. Matt Rosendale said term limits would give more power to the executive, which is the opposite of its intent. Under the plan, justices would serve single 18-year terms, giving every president a chance to appoint two justices. That aims to end outrageous power grabs like those of former Senate Majority Leader Mitch McConnell, who refused to even hold a hearing on a justice appointed by a Democratic president, only to rush one through when a Republican was president.
Term limits are an appealing idea, but R Street, a conservative think tank, points out that they would not necessarily work as intended. Justices could still die before their terms end, and justices serving in their 16th or 17th year might want to resign early either to give an extra appointment to a president they favor or to angle for some post-Supreme Court job opportunity.
An attempt to impose term limits legislatively rather than by amending the Constitution also could backfire by further politicizing an already politicized confirmation process.
Alexander Hamilton argued in Federalist 78 that justices should serve for life, in part to master the law, noting that a “voluminous code of laws is one of the inconveniences necessarily connected with the advantages of a free government.” He also thought presidents should be elected for life, so his wisdom on the topic is questionable.
Some delegates to the Constitutional Convention feared giving Supreme Court justices too much power. Robert Yates, writing under the pen name of “Brutus,” said justices “are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel independent of heaven itself.”
All three of Biden’s proposals are rich topics for discussion. Too bad our Republican candidates don’t want to discuss them.
