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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NewsTranscript
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.