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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NewsTranscript
00:00Playing devil's advocate, though, a lot of those in the Republican Party are saying, you know, if cases were going the way that Democrats or liberals wanted them to go, then this would be a non-issue.
00:09Nobody would be talking about court reform. Nobody would be talking about replacing justices every couple of years or having 18-year term limits.
00:16So I know you've been in this game trying to advocate, again, no matter which party is in power, trying to advocate for a reform of, again, a court that doesn't really have any oversight like other areas of our government.
00:31But is there some credence to that argument that nobody would care about this if the Voting Rights Act hadn't been gutted, if Roe v. Wade hadn't been overturned?
00:42Yeah, I mean, look, I take the long view of this. And in every generation, since the start of the country, there's been an effort to reform the court in one way or another.
00:53I mean, whether or not, you know, go back into, you know, Thomas Jefferson trying to reduce and then expand the number of justices, similar things happened around the Civil War.
01:04You know, in terms of the docket, that changed in 1893, 1911, 1988. You know, there's been efforts to change the makeup of the court for a while.
01:13And from a term limits perspective, that really got started not because of the jurisprudence of the court, but because between 1994 and 2005, we were in, and it was by a few days, so we'll just call it the longest, the second longest or the longest periods in U.S. history when there was no turnover on the court.
01:32That's really what kickstarted, at least in my view, in my, you know, my thinking, I'm just talking as one person, I guess.
01:38But, you know, when, in 2005, there was a really, 2006, there was a forum talking about, you know, and obviously, 2005, Roberts comes in, 2006, Alito comes in.
01:51But in 2006, there was a forum at Duke Law talking about, you know, do we need to reconsider life tenure? And so that lack of turnover and that superannuation of the court is really what, it wasn't the jurisprudence, maybe some of the, you know, there were liberal professors there, there were conservative professors there.
02:08That's really where the 18-year term limit became popularized. It had, you know, existed in law review articles since time immemorial, but it really got caught on in 2006.
02:18So it was really this issue of just not having turnover at the court. And further, one of the other sort of stars of that period was an article by a law professor talking about mental decrepitude in the Supreme Court.
02:30And those are the words that he used. And he found research that suggested that, again, in every generation, every 20 or 30 years since the start of our country, a justice has been cognitively declined.
02:40And this is, you know, I think we would have seen that with several of our justices who, you know, whose physical health gave way before their mental health.
02:49We're looking at you, Rehnquist, Ginsburg, and Scalia. But, you know, talking about Marshall and Brennan and the Grenalds, I mean, every generation there was a justice that had mental decrepitude.
03:00And so that, to me, is more than the jurisprudence, frankly, why I want a Supreme Court that has term limits, because, frankly, judges and justices who have so much power over us should not be serving until they're 120.
03:13It definitely seems anti-democratic to those who are advocating for term limits and really a majority of the country who are not really pleased with a lot of the ways things are going and do feel that there needs to be change.
03:25And how would this be, though, enforced in terms of especially the ethics code and things like that?
03:31Obviously, term limits would be something that would be regulated. But if, again, like you said, the start, the sort of soft sell is, you know, at least we need an ethics code, which a lot of people might feel isn't going far enough.
03:42But what enforcement mechanisms do we have when the Supreme Court is basically holding a lot of power on its own?
03:50Yeah, I mean, look, something that I've always said on this is look at the justices' budget, frankly. I've been trying to push this.
03:57I have had moderate levels of success that, you know, at least a few senators have introduced amendments to this effect.
04:05But the Supreme Court gets $150 of taxpayer money each year. About $4 million of that is required to go to them under the Constitution because their salaries cannot be diminished during their time in office.
04:15And that includes senior justices as well. And then we've got about $50 to $70 million of that being security funding, which obviously you don't want to touch given this era of political violence, which is unfortunate.
04:25But obviously, you're not going to touch that. So that leaves another about $75 million, maybe even up to $100 million that is discretionary.
04:35That goes to paying the justices for clerks that they get each year to write their first drafts of opinions and sit on the cert pools.
04:42That goes to them having catered lunches and hosting receptions in the Great Hall.
04:50That goes to support staff and research staff and judicial assistants.
04:55And I'm not trying to, you know, lay off a bunch of government employees, though I'm sure there would be some both on the left and the right who would want to do that.
05:01But what I'm saying is, is that their budget, besides the Article 3 stuff and the security, is not sacred.
05:07And if you want to have enforcement, say, look, if you don't create a system where there's enforceable ethics, where there's a committee where you can file a complaint against the justice, just like you can file a complaint against any of the 2,300 other federal judges for ethics noncompliance.
05:23If you don't create those structures, then we're going to take away some of your discretionary budget.
05:27And Senator Van Hollen of Maryland introduced an amendment last year to the appropriations bill that would do that.
05:32$10 million would be taken away until they have enforceable ethics.
05:35That didn't pass.
05:36But, you know, I think it's worth to keep trying because, frankly, the power of the purse is the one thing that Congress can sort of dangle over the court in a way that might lead to their getting serious about their ethics practices.
05:50Well, many are continuing to try, and there are a lot of new ideas coming out.
05:54And there's more momentum behind this.
05:57Gabe, you are the go-to expert on this.
06:00You've been in the trenches on this issue.
06:02So, hopefully, a lot of your ideas will be adopted and come to realization.
06:06And you will be able to say, this is what I've been saying, and I told you so.
06:10And we're all for it.
06:11Yeah.
06:12A few things.
06:13I enjoy a few things more than being able to say I told you so, which is definitely a huge character flaw on my part.
06:18But I'm not changing it in this day and age.