Why Biden's Major Supreme Court Reform Proposals Are Actually Moderate: Fix The Court Exec Director

2 months ago

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

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00:00Hello, everyone. I'm Leanne Jackson, Senior Law Editor at Forbes, and I am joined today

00:06by Gabe Roth from Fix the Court, who has spent years analyzing issues and problems with the

00:14Supreme Court, how the challenges that are currently facing the court can be repaired.

00:20And I'm happy to have him join us because yesterday, President Biden gave a speech and

00:24also wrote a Washington Post op-ed, putting forth his ideas about court reform.

00:30And I definitely want to get Gabe your thoughts on this. So let's get started with that. Just

00:36initially out of the gate, what did you think about sort of the tough tone that President

00:42Biden took towards what needs to happen with the court? Some of his words saying what's

00:46happening with the court right now is not normal.

00:49Yeah, I mean, there's no doubt in my mind that he is correct. I mean, having a recent

00:56opinion earlier this month where. Six justices on the Supreme Court effectively sanctioned

01:03permitted presidential wrongdoing because they believe that a president is above the

01:09law, that is not normal. In the past, we had cases from Nixon to Clinton to even some of

01:15the earlier Trump taxes cases that were unanimous, unanimously decided against a

01:24president. So this is that case was obviously a turning point for President Biden.

01:30He's been reported that he spoke to Supreme Court expert Larry Tribe, who is President

01:35Obama's Harvard law professor. After that decision came out, the Trump U.S.

01:41decision came out on July 1st, and that, I think, sort of helped cement his views on

01:45what reform needs to look like.

01:47And look, I'm very pleased that he has chosen two of the reforms that I've been

01:50championing for the better part of a decade, 18 year term limits for Supreme Court

01:54justices and an enforceable ethics code.

01:57Is there any reason that either party should be opposed to this?

02:01I mean, the majority of the American public has a crisis in confidence with the court

02:05and a lot of the decisions that have rolled back precedent and what is currently a

02:11conservative supermajority that has moved from the moderate middle.

02:16Is there any reason that either the Republicans or the Democrats should feel that term

02:21limits or an ethics code would be sort of a negative for the court?

02:26Yeah, I mean, look, these are very moderate proposals and these are proposals that polling

02:30that I started doing 10 years ago, 70, 80 percent of Americans identifying as liberals

02:37and conservatives support.

02:3918 year term limits just mean more regularity to the Supreme Court appointment process.

02:45If, you know, God forbid, Sam Alito died tomorrow, he'd be replaced by a liberal.

02:52And just like when Antonin Scalia died, he was well, actually, sorry, Ruth Bader

02:59Ginsburg died. Antonin Scalia was not replaced by a liberal.

03:01When Ruth Bader Ginsburg died, she was holding on, you know, so Alito and Thomas,

03:06theoretically, right now are holding on to a point in time in which a president with

03:11whom they agree sits in the White House.

03:13Similarly, Justice Ginsburg waited for a president with whom she agreed to sit in the

03:18White House. And so did Justice Scalia.

03:20And it didn't work out for the two of them.

03:23But it is it could work out for Alito and Thomas.

03:26And this idea that, you know, there's a Scalia seat or a Ginsburg seat or a Thomas seat

03:30or Alito seat.

03:32That's not how it should be. These are seats that belong to the American people.

03:35And having a justice pick their successor shouldn't be kosher.

03:40And we should just have a regular rotation of who of the justices.

03:44There's no sort of extra, you know, out of this world judicial or legal insight that any

03:50justice gets by by getting crusty and serving on the court for 30 or 35 years as is

03:55becoming the norm. Having justices that reflect modern times, whether those times are

04:00liberal or conservative, I think is critical.

04:03And currently having a justice in Justice Thomas, just to give the most obvious example,

04:08because he served on the court the longest, who was put into his office by someone who

04:14left the presidency on January 20th, 1993, when I was 10, doesn't make a lot of sense.

04:21So, you know, these proposals are politically neutral.

04:26It's not something that you might hear from someone like, say, Mitch McConnell.

04:29But over time, even in the short term, term limits would not favor one party or another.

04:34Neither would ethics reform.

04:35I mean, having a complaint process for the justices wouldn't favor one side or the other.

04:40It's just, I don't know, be ethical and then you have nothing to worry about.

04:43Yeah, there's no benefit or practicality that most experts see in not having, for example,

04:50an ethics code for the Supreme Court, or also speaking of not normal, most other

04:54countries don't have lifetime appointments for the highest court in the land, which is

04:59an undemocratic institution of all of our, the most undemocratic of all of our institutions

05:03in that you have a lifetime appointment.

05:04Nobody's elected to this position.

05:06And as you said, it's very politicized.

05:08So the idea that we are an outlier in sort of the Western world and democratic societies

05:14in the way the Supreme Court holds has recently also hold undue influence, disproportionate

05:20sway over our legislature, even the executive branch.

05:25Do you feel like there is any, you know, the idea that an ethics code is necessary?

05:32Why would there be any opposition to that?

05:35Yeah, no, it's it doesn't make a lot of sense.

05:38And look, I mean, I think there might be an argument from the left saying these reforms

05:44don't go far enough.

05:45They're not disempowering reforms to the extent that certain things like maybe jurisdiction

05:50stripping or even court expansion might be.

05:53I personally don't like court expansion.

05:56I think it's sort of a seeds to the notion that we're a juristocracy and just like six

06:01conservative justices are saying how things should be now, then maybe seven liberal

06:06justices or 27 liberal justices, I don't know, would would sort of lead the country in

06:12terms of politics and policy.

06:13I'd rather it be the people through our elected representatives who do that.

06:17You know, that's why I don't like court expansion.

06:19But in terms of ethics specifically, yeah, there really shouldn't be any opposition.

06:23And if you look at the history of this issue, you know, during the post Watergate period

06:28when there was a lot of good government reforms, the Ethics in Government Act passed with

06:33bipartisan majorities.

06:35And that was an ethics reform where lower court judges had some say and sway over how

06:40financial disclosure reports for the justices were filled out.

06:43So, you know, that's sort of an ethics enforcement mechanism that exists to this day

06:48that is carried out by lower court judges.

06:50And there is even another one.

06:52What happens now when you file a complaint against the lower court judge is that a

06:55counsel of the judge's peers will adjudicate it and say, I mean, 98 percent of them are

06:59frivolous. So, you know, don't get me wrong, this is not a huge problem, but about

07:04fourteen hundred are filed each year and you have a counsel of if it's if it's

07:07meritorious that the dozen or so that are meritorious, you have a counsel of the

07:12judge's peers that are deciding, OK, does someone need to return a gift?

07:15Does someone need to recuse from a case?

07:17Does someone need to take ethics training classes?

07:21Putting the justices into a rubric like that was actually envisioned at the time of

07:25this post Watergate changes.

07:27But the justices successfully, 45 years ago, lobbied against their inclusion in the

07:31bill. Hopefully that wouldn't happen again.

07:34But, you know.

07:36Bipartisan majorities passed a bill again that didn't the president didn't end up

07:40signing it, the House didn't end up passing it, but bipartisan majorities passed a bill

07:44that would have that ethics requirement, that sort of judicial counsel adjudication

07:48that I described apply to the justices.

07:50There's no reason we can't bring it back.

07:52It seems like President Biden wants to bring it back.

07:54It seems like who, by the way, voted for that bill back in 1977, Justice Kagan last

07:59Thursday said she would also similarly like to see a committee of judges that when a

08:04complaint arises would look into whether or not a justice has, in fact, violated the

08:09oath of office or violated the ethics canon.

08:11So it's not hard to do.

08:12And the opposition is just seemingly grasping at straws because it's really not any

08:18sort of it would be a major change in that nothing like this has happened before.

08:23But in terms of the structure of the court, it wouldn't really change anything.

08:26Yeah, well, to your point, though, there are people who are in opposition and many have

08:31said, including Leonard Leo, head of the Federalist Society, the speaker of the House

08:38has said, yes, has said that this is dead on arrival.

08:43And, you know, de minimis reform in terms of ethics, as you said, like recusing from

08:48cases that you have where there might be self-dealing or not self-dealing, but your

08:52family members are involved or there's some reason you should, some very clear reasons

08:57in recent instances as well with some of the justices that you should be recusing from

09:00the case, sort of these de minimis reforms are having extreme opposition, extreme

09:05difficulty getting a consensus or getting pushed through.

09:09So the idea that this is D.O.A.

09:10and this is just sort of Biden's last like some sort of swan song to try to appease his

09:15base. What do you think of that argument?

09:19Yeah, I think two things.

09:21One, clearly there's there's a political angle to this, right?

09:25He he sees where the party is, the party wants reform and he wants to be seen as leading

09:31that reform, whether you know whether or not this announcement was going to happen if he

09:34was still running for president or not.

09:36You know, that that might be an open question.

09:38I think it probably would have.

09:39But he wants to be putting his stamp on the Supreme Court because during the time in

09:44office, it has become his time in office.

09:47It has become such a major hot button issue.

09:48Right. He was president when Roe versus Wade was overturned.

09:51He was obviously president 29 days ago when Trump, the U.S.

09:56came out. Plenty of other major cases on Chevron deference and environmental regulations

10:01and affirmative action that came out, not probably the way the average Democrat would

10:05want and probably not the way that Joe Biden would want.

10:09So he was president when all that happened.

10:11So it would be kind of weird for him not to try to make a stamp on it.

10:14And it was a bit strange that he didn't do anything after the presidential commission on

10:19Supreme Court reform that he started in December.

10:21Twenty one came out with a bunch of recommendations that included things like an

10:25enforceable ethic. Sorry, didn't come out with recommendations.

10:28It was not allowed to come out with recommendations, but it mentioned 18 year term

10:33limits, ethics reform, recusal reform, that sort of thing.

10:36So it's strange that it's sat on the shelf for that long.

10:39And so, you know, I think it's part of it.

10:41He wants to put his stamp on it.

10:43And the second thing I'll just say is, you know, just sort of taking more of a 30,000

10:47foot view, what might be possible is following a playbook that has worked in the past

10:54with court reform. So it's that which members of Congress themselves have to follow

10:59should be followed by federal judges and justices.

11:02And I'll just give one quick example.

11:03In twenty twenty two, Congress passed a bipartisan law that President Biden signed that

11:07required federal judges and Supreme Court justices to post details of their stock

11:12transactions online and to post their annual financial disclosures online.

11:16There was resistance from certain corners of the judiciary to not have the Supreme

11:20Court or to not have some magistrate and bankruptcy judges have to have this requirement.

11:25But they lost, thankfully.

11:27And now, I mean, I was just on the database this morning.

11:30Every single justice's disclosure is there.

11:32Every single justice's financial transactions is there, in addition to thousands of others

11:36from the lower federal courts.

11:37So if we look at that as a model, there are certain things that Congress already has to

11:42do, whether it be not accept gifts over fifty dollars, report on all of their travel

11:48expenses in an itemized and comprehensive way.

11:51So I think looking at some of these maybe smaller reforms that already apply to Congress

11:55and then applying them to the Supreme Court might be strategically a way to move forward

12:00that sort of touches the issue of ethics without being seen maybe as a major

12:05overhaul like some of the Republican Party, you're calling it.

12:08And playing devil's advocate, though, a lot of the polls in the Republican Party are

12:12saying, you know, if cases were going the way that Democrats or liberals wanted them to

12:16go, then this would be a non-issue, nobody would be talking about court reform, nobody

12:19would be talking about replacing justices every couple of years or having 18 year term

12:24limits. So I know you've been in this game trying to advocate again, no matter which

12:29party is in power, trying to advocate for a reform of, again, a court that doesn't

12:34really have any oversight like other other areas of our government.

12:40But is there some credence to that, to that argument that nobody would care about this

12:44if if the Voting Rights Act hadn't been gutted, if Roe versus Wade hadn't been

12:49overturned? Yeah, I mean, look, I take the long view of this.

12:54And in every generation since the start of the country, there's been an effort to

12:59reform the court in one way or another.

13:01I mean, whether or not, you know, go back into, you know, Thomas Jefferson trying to

13:07to reduce and then expand the number of justices, similar things happened around the

13:11Civil War, you know, in terms of the docket that changed in 1893, 1911, 1988, you

13:18know, there's been efforts to change the makeup of the court for a while.

13:22And from a term limits perspective, that really got started not because of the

13:26jurisprudence of the court, but because between 1994 and 2005, we were in and it was

13:33by a few days. So we'll just call it the longest, the second longest or the longest

13:38periods in U.S.

13:38history when there was no turnover on the court.

13:41That's really what kickstarted, at least in my view and my, you know, my thinking.

13:45I'm just talking as one person, I guess.

13:46But, you know, when in 2005, there was a really to 2006, there was a forum talking

13:55about, you know, and obviously 2005, Roberts comes in 2006, Alito comes in.

14:00But in 2006, there was a forum at Duke Law talking about, you know, do we need to

14:05reconsider life tenure?

14:08And so that lack of turnover and that superannuation of the court is really what it

14:12wasn't the jurisprudence, maybe some of the, you know, there were liberal professors

14:15there, there were conservative professors there.

14:17That's really where the 18 year term limit became popularized.

14:20It had existed in law review articles since time in memoriam.

14:24But it really got caught on in 2006.

14:27So it was really this issue of just not having turnover at the court.

14:30And further, one of the other sort of stars of that of that period was an article by a

14:34law professor talking about mental decrepitude in the Supreme Court.

14:38And those are the words that he used.

14:40And he found research that suggested that, again, in every generation, every 20 or 30

14:44years since the start of our country, a justice has been cognitively declined.

14:49And this is, you know, I think we would have seen that with several of our justices

14:54who, you know, whose physical health gave way before their mental health.

14:57We're looking at you, Rehnquist, Ginsburg and Scalia.

14:59But, you know, talking about Marshall and Brennan and the Grenolds and I mean, every

15:05generation there is a justice that had mental decrepitude.

15:08And so that to me is more than the jurisprudence, frankly, why I want a Supreme

15:13Court that has term limits, because frankly, judges and justices who have so much power

15:17over us should not be serving until they're 120.

15:21It definitely seems anti-democratic to those who are advocating for term limits and

15:26really a majority of the country who are not really pleased with a lot of the ways

15:30things are going and do feel that there needs to be change.

15:33And how would this be, though, enforced in terms of especially the ethics code and

15:39things like that? Obviously, term limits would be something that would be regulated.

15:42But if again, you said the start, the sort of soft sell is, you know, at least we need

15:48an ethics code, which a lot of people might feel isn't going far enough.

15:51But what enforcement mechanisms do we have when the Supreme Court is basically holding a

15:55lot of power on its own?

15:58Yeah, I mean, look, this is something that I've always said on this is look at the

16:02justices budget, frankly, if I've been trying to push this, I have had moderate levels

16:08of success that, you know, at least a few senators have introduced amendments to this

16:13effect. But the Supreme Court gets one hundred and fifty dollars of taxpayer money each

16:17year. About four million of that is required to go to them under the Constitution

16:21because their salaries cannot be diminished during their time in office.

16:24And that includes senior justices as well.

16:26And then we've got about fifty to seventy million dollars of that being security

16:29funding, which obviously you don't want to touch given this era of political violence,

16:32which is unfortunate.

16:34But obviously you're not going to touch that.

16:36So that leaves another about seventy five million dollars, maybe even up to one

16:41hundred million dollars that is discretionary.

16:44That goes to paying the justices for clerks that they get each year to write their first

16:49drafts of opinions and sit on the circles.

16:51That goes to them having catered lunches and hosting receptions in the great hall.

16:59That goes to support staff and research staff and judicial assistance.

17:04And I'm not trying to lay off a bunch of government employees, though I'm sure there

17:07would be some both on the left and the right who would want to do that.

17:10But what I'm saying is, is that their budget, besides the Article three stuff and the

17:14security, is not sacred.

17:16And if you want to have enforcement say, look, if you don't create a system where

17:21there's enforceable ethics, where there's a committee where you can file a complaint

17:25against the justice, just like you can file a complaint against any of the twenty three

17:28hundred other federal judges for ethics noncompliance, if you don't create those

17:32structures, then we're going to take away some of your discretionary budget.

17:35And Senator Van Hollen of Maryland introduced an amendment last year to the

17:38appropriations bill that would do that.

17:40Ten million dollars would be taken away until they have enforceable ethics.

17:44That didn't pass. But, you know, we're going to I think it's worth to keep trying

17:47because, frankly, the power of the purse is the one thing that Congress can sort of

17:50dangle over the court in a way that might lead to their getting serious about their

17:56ethics practices.

17:58Well, many are continuing to try and there are a lot of new ideas coming out and

18:03there's more momentum behind this.

18:05And Gabe, you are the go to expert on this.

18:08You've been in the trenches on this issue.

18:10So hopefully a lot of your ideas will be adopted and come to realization and you will

18:15be able to say this is what I've been saying.

18:17And I told you so. And we're all for it.

18:20Yeah. A few things, a few things.

18:21I enjoy a few things more than being able to say I told you so, which is definitely a

18:25huge character flaw on my part.

18:26But I'm not changing at this in this day and age.

18:29Well, especially when it's something good, something positive.

18:32I like to I like to think it is right.

18:35Well, thank you so much for joining us.

18:36And I hopefully will be speaking with you soon as this issue does go forward in

18:43politics and in the courts.

18:44We'll see what happens next. Thanks so much for having me, Leanne.

Why Biden's Major Supreme Court Reform Proposals Are Actually Moderate: Fix The Court Exec Director

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