Biden to push for Supreme Court ethics reform

July 16, 2024 6:48 PM

Plan is for term limits and amendment to overturn immunity ruling
posted by NotLost (95 comments total)

Well shit. About fuckin' time. Good luck, Joe.
posted by egypturnash at 7:01 PM on July 16 [53 favorites]

The Supreme Court has already written itself an ethics code, in which everything is ok. I'm glad Biden is at least talking about the issue, it's a start. But unless he's going to bring some firepower to the discussion.... Not holding my breath. But it is something. Hopefully it doesn't just rely on Republicans being decent human beings.
posted by Jacen at 7:03 PM on July 16 [7 favorites]

Even if it doesn't happen immediately, just making the proposal is a huge step. For far, far too long, even the most modest reforms were unthinkable, unmentionable. The Supreme Court was a holy priesthood and we must not offend the Founders glorious perfect vision by limiting them in any way. Once you start talking about changes of any kind, the conversation can shift from "is anything ever possible" to the details of what, how much, when.

Let's go.
posted by Tomorrowful at 7:03 PM on July 16 [72 favorites]

Hopefully it doesn't just rely on Republicans being decent human beings.

I expect it relies on Dems getting majorities in Congress, at least.
posted by NotLost at 7:04 PM on July 16 [17 favorites]

Good luck.

Talking about a thing is the first step towards making it happen.
posted by Artw at 7:07 PM on July 16 [9 favorites]

I think the Dem majorities in Congress will be crucial, yes; I'm hopeful that with Manchin and Sinema gone, a razor-thin majority of Democrats would be able to change the Senate rules to address Republican abuse of the filibuster and actually pass laws with a simple majority of votes.

I'm very pleased to see Biden publicly consider all three of these steps. I hope we can work together to make them happen.

Thanks for posting this, NotLost! I am always so grateful for good news.
posted by kristi at 7:10 PM on July 16 [19 favorites]

I am happy this is being proposed, but we have an empty barn, closing the door now isn’t going to put the horses back in.
posted by caution live frogs at 7:13 PM on July 16 [12 favorites]

You know the plan is just bullshit because if the Dems had the political power to pass a constitutional amendment, we probably wouldn't need to outlaw being a corrupt supreme court judge or clarify that the president isn't a king.
posted by ryanrs at 7:13 PM on July 16 [7 favorites]

whoa it's almost like Biden just remembered he's president of the United States or something
posted by DoctorFedora at 7:14 PM on July 16 [12 favorites]

“Seriously considering”
posted by Going To Maine at 7:24 PM on July 16 [13 favorites]

I mean it’s not really likely that the changes happen in short order. But even starting the discussion is a dramatic shift from the all-is-ok we’ve seen so far.
posted by doomsey at 7:29 PM on July 16 [5 favorites]

"Seriously considering publicly endorsing"

All good as far as it goes but somewhat frustrating given that we've all been watching this extremely predictable situation developing for many years.
posted by Not A Thing at 7:30 PM on July 16 [6 favorites]

President Joe Biden is seriously considering publicly endorsing major reforms

Biden is planning to publicly back

The president is also said to be preparing to throw his support behind

Based on the article, it looks like the first sentence is just misleading, right? The rest of the piece suggests he's going for it.
posted by Emmy Rae at 7:32 PM on July 16 [5 favorites]

I hope Biden and the other slow-to-act Dems are learning from AOC & the squad that people like to see you fight for them, even if you can't win right now or it's a huge longshot.
posted by Emmy Rae at 7:33 PM on July 16 [43 favorites]

I mean it’s not really likely that the changes happen in short order. But even starting the discussion is a dramatic shift from the all-is-ok we’ve seen so far.

Yes, but realize that this dramatic shift is only because they are facing losing all power, so they are starting a discussion. If Biden wins, it'll all just evaporate. And if Biden loses, it will also evaporate. It's all a mirage.
posted by ryanrs at 7:40 PM on July 16 [9 favorites]

If Biden wins, it'll all just evaporate. And if Biden loses, it will also evaporate. It's all a mirage.

I don't get this snark. What exactly do you expect from electeds if the attitude is nothing -- no action at all -- will satisfy you?
posted by ichomp at 7:49 PM on July 16 [22 favorites]

The reforms backed by Biden would need congressional approval and the constitutional amendment would require ratification by 38 states in a process that seems nearly impossible to succeed.
posted by lalochezia at 7:51 PM on July 16 [7 favorites]

Well all that shit Republicans did was supposedly unthinkable at some point, so power of trying, eh?
posted by Artw at 7:53 PM on July 16 [23 favorites]

What exactly do you expect from electeds if the attitude is nothing -- no action at all -- will satisfy you?

No, I'm saying that this--Biden considering stuff and alluding to things--is not 'action'.
posted by ryanrs at 7:54 PM on July 16 [9 favorites]

It seems like too little, too late, given the rulings we've seen federal judges make. I hope I'm wrong.
posted by They sucked his brains out! at 8:00 PM on July 16 [2 favorites]

Mr. President, if you're proposing a constitutional amendment as a response to the current situation, you're either stupid, or you think that I am.
posted by ryanrs at 8:04 PM on July 16 [5 favorites]

Maybe he can expand the court while he's at it. If ever there was a time for a sitting president to go gonzo -- on everything -- this is it. Don't hold back, Joe.
posted by vverse23 at 8:04 PM on July 16 [18 favorites]

power of trying, eh

Well that's just it, isn't it? The unthinkable things Republicans have done, they've done because they were willing to bend, torture and break the rules to get them done. Are Democrats willing to go to the same lengths to pursue their agenda? How hard are they willing to try?

My guess is not hard enough, which is why with the best of intentions I don't see Biden's reforms gathering any steam, but I would be SO HAPPY to be proven wrong, and am encouraged at least to see them considering it. Maybe Biden and his admin will be open to considering other reforms as well, that would have been unthinkable before. In fact maybe it would be better if Biden hits a wall here, maybe the intractability of the problem will drive him to consider more radical approaches.
posted by Two unicycles and some duct tape at 8:11 PM on July 16 [8 favorites]

If ever there was a time for a sitting president to go gonzo -- on everything -- this is it

Honestly, I think that time was 4 years ago. If he'd fought for these things then, people wouldn't be trying to dump him now.
posted by evilDoug at 8:12 PM on July 16 [14 favorites]

Second best time is…
posted by Artw at 8:14 PM on July 16 [25 favorites]

Lalochezia has it. In 2020 Biden won 25 states. To ratify an amendment, there'd need to be support from 2/3rds of both the House and Senate, and 38 states.

The idea that you might respond to the current crisis with a constitutional amendment is just objectively stupid.


Honestly, the Dems are probably talking about this impossible amendment to take pressure off doing other radical--but possible--actions, like stuffing the court. This way they can talk about something that will never happen, vs stuffing the court and forcing the issue right now.
posted by ryanrs at 8:16 PM on July 16 [15 favorites]

I don't get this snark.

The main thing you need to remember is simply that Republicans are our natural superiors, and time spent opposing them is wasted.

Secondarily, if you cannot immediately implement Fully Automated Gay Space Communism on Day One you're worse than Hitler and should have never tried to do anything at all because surely some other invisible candidate that nobody has ever heard of could have done it, and now you're just standing in their way.
posted by aramaic at 8:17 PM on July 16 [39 favorites]

Biden could get that 3/4 of the states needed really quick if he started with some “official acts” that red states don’t like.
posted by azpenguin at 8:19 PM on July 16 [11 favorites]

Biden’s ideas are reasonable, and even if they don’t succeed, force the GOP to defend the unreasonable at length.
posted by Capt. Renault at 8:24 PM on July 16 [18 favorites]

Stop considering it and fucking do it.
posted by kittens for breakfast at 8:31 PM on July 16 [5 favorites]

Biden is not Congress. How exactly do you expect him to change the Supreme Court?

This announcement is great news because SCOTUS is the most consequential thing on the line here, so any moves that he can possibly make, even just saying and signaling, is good news. The negative reactions are unwarranted.
posted by ichomp at 8:35 PM on July 16 [11 favorites]

I am glad to hear this because I think this is one way for Biden to atone for his role in Clarence Thomas's confirmation.
posted by ichomp at 8:38 PM on July 16 [8 favorites]

I'm happy he's talking about it at least because it's a point we need to hammer before the election. These decisions are unpopular and the court has been hijacked. Keep reminding people.
posted by tiny frying pan at 8:43 PM on July 16 [11 favorites]

I don't get this snark.

Perhaps you're new here?

MetaFilter: Just the place for a Snark.
posted by The Bellman at 8:44 PM on July 16 [2 favorites]

Term limits and an ethics code can be done without an amendment. (They do require congressional majorities).

The amendment would be for undoing the recent SCOTUS decision on presidential power only.
posted by nat at 8:51 PM on July 16 [9 favorites]

You know what’s going to help?

Making an effort to win every other race that’s not the big one.

Thats right, I’m sounding the down ballot activism drumbeat again.

As a bonus the more is won the better leverage there is to make Biden actually stick to this shit.
posted by Artw at 9:04 PM on July 16 [26 favorites]

The idea that you might respond to the current crisis with a constitutional amendment is just objectively stupid.

Isn't the whole point of constitutional amendments to respond to unanticipated crises? I get that it seems like a longshot politically at this moment, but that doesn't mean we shouldn't even try. These things take time and effort. I want more of this.
posted by swift at 9:06 PM on July 16 [14 favorites]

Term limits and an ethics code can be done without an amendment.

I don't buy that you can impose term limits on federal judges without an amendment. Article 3 says "The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour" and that has always been taken to mean a lifetime appointment. The "good behavior" clause is a reference to impeachment, and would seem to limit forcible removal to that one option.
posted by ryanrs at 9:11 PM on July 16 [2 favorites]

I read somewhere that it might be easier to expand the bench and balance out the judiciary.
Not sure how difficult that is compared to trying to add in amendments around terms & ethics.
posted by phigmov at 9:12 PM on July 16 [1 favorite]

Biden is not Congress. How exactly do you expect him to change the Supreme Court?

Gosh, you're right. Well, nothing can be done I guess. Another Biden win!
posted by kittens for breakfast at 9:13 PM on July 16 [3 favorites]

I am happy for this announcement and I will support candidates in downballot races so we can get closer to a Congress that supports this.

Moving the needle in the right direction is progress to me.
posted by ichomp at 9:42 PM on July 16 [15 favorites]

Regarding the constitutionality of legislative introduction of term limits, read here (scroll down to “concerned about constitutionality”) and read the links.
posted by nat at 9:46 PM on July 16 [1 favorite]

I think I'm not alone in having the knee-jerk reaction of pumping my fist and shouting "FUCK EM UP, BRANDON" at my screen when I read this headline?
posted by potrzebie at 10:06 PM on July 16 [8 favorites]

nat, those articles cite voluntary senior status as an argument that congress can force judges out of the supreme court and down to circuit court. It's conflating voluntary reduction of duties with term limits.
posted by ryanrs at 10:11 PM on July 16 [2 favorites]

The handful of people snarking on this as something that'll (supposedly) evaporate if they win, and (obviously) evaporate if they lose, have chosen the wrong angle. The proper wise-contrarian angle here is that these proposals create extra incentive for all six rightwing Justices (instead of the guaranteed two, probable three or four, and maybe or maybe not five or six) to install Trump into office even if he loses the election. Get your snark straight.

But apart from that fear, I think it's an unmitigated good it's being brought up now. Plus, if Democrats win the white house, maybe red states would start seeing the value of that Constitutional amendment.
posted by nobody at 10:15 PM on July 16 [3 favorites]

ryanrs, there is an important detail indeed: the “senior status” would be required, not voluntary, but would be agreed to at the start of a justice’s appointment. So unfortunately at least that version would not fix the current court. But I still think it’s a great future proposal.

(Of course I have no idea which version of “term limits” Biden is supposedly going to advocate for).
posted by nat at 10:31 PM on July 16 [1 favorite]

Metafilter: The negative reactions are unwarranted
posted by lescour at 10:44 PM on July 16 [5 favorites]

Times like this, I wish Dark Brandon was real, rather than an embodiment of our collective hopes and dreams.
posted by lock robster at 12:22 AM on July 17 [5 favorites]

In my opinion, it's not enough (nothing is ever enough), but it IS the right direction, and it IS a good sign that Biden is going to campaign on important issues and not just vague "unity and democracy" type sentiments.

I know some folks here find it frustrating that Dems seem unwilling to "bend the rules" and "play hardball" and I've been on that side at times, but have come to generally conclude that if we don't take rules and norms seriously, we just open the door to a different flavor of corruption. And yes, living under neoliberal oligarchs would be (is?) better than living under fascist oligarchs, so it's more about how much ground you're willing to cede and what you think you can save. "They go low we go high" has not been a successful playbook; we definitely need to go lower. But how low is something we each have different comfort levels with.
posted by rikschell at 4:43 AM on July 17 [8 favorites]

The message to take from this--I think?--is neither that Biden is a progressive superstar, nor that he is making useless efforts, but rather than he's the first Democratic president who has really needed the support of his left, recognizes that, and takes up some of their policy positions. (It's what makes his failures (to use that term very lightly) so maddening because you can see what he could do better with each one.)

The question at this point is not "will this work" but "will this play"? Considering the popularity of last election's "drain the swamp," there could be voter support for anything that changes something, pushes somebody out of government, just because people understand personnel changes more than they understand policy.
posted by mittens at 4:50 AM on July 17 [10 favorites]

Regarding the constitutionality of legislative introduction of term limits, read here (scroll down to “concerned about constitutionality”) and read the links.

From that link:
Some may still feel that pushing justices into senior status would be too similar to forcing them into retirement. But “senior status” in the judiciary is a congressional creation, and one that has been almost universally accepted as a constitutionally valid interpretation of Article III.

So the plan hinges on the idea that this court won’t make a ruling against a “universally accepted” interpretation of the law? And it would take 18 years to come to fully come to fruition? Forgive me if I seem skeptical that this is what we need in this moment!

This seems like a plan that would work after first getting to a more reasonable court so that it has a chance of taking effect and establishing a norm. It’s not an opening play. Like if you’re having a heart attack your first step can’t be to talk about switching to a better diet and exercise. That’s a good thing but it’s not the thing you need right now!

If we have the presidency and both houses of congress and would nuke the filibuster for this plan (which is probably what it would take), then use that power to first rebalance the court by adding justices and then enact a reform like this?

I can only hope this is Biden very gingerly testing the waters to see how far he can go because this plan is a nothingburger without first rebalancing the court.
posted by delicious-luncheon at 5:04 AM on July 17 [2 favorites]

i love that any time this dude announces he is thinking about considering to take seriously looking into something, the same folks who cheer with delight will respond to any skepticism or criticism by saying cmon guys he's just the president of the united states what do you want. he's at once the can-do american leader getting so much shit done and the hapless chief of the executive branch whose hands are tied and how dare you. schroedinger's president.
posted by Aya Hirano on the Astral Plane at 5:21 AM on July 17 [5 favorites]

I know some folks here find it frustrating that Dems seem unwilling to "bend the rules" and "play hardball"

THE PURPOSE OF A SYSTEM IS WHAT IT DOES. Biden and the Dems had no problem playing hardball and ending the railroad strike before it began. Any time labor wants to flex its strength, the Dems are ready to put the brakes on it. They have no problem going along with every war in our lifetimes. Hey, we gonna get any police reforms? Whoops, it's out of the spotlight now. Maybe we'll consider it next time there's nationwide protests. Oh, and by the way, the pandemic is over so get back to work. (j/k we never really locked down to begin with, and we can't demand employers provide PPE, ventilation, or adequate sick days.)

They don't "seem" unwilling. How many times does this need to happen before you realize that "can't" is and has always been "won't"?
posted by AlSweigart at 5:30 AM on July 17 [18 favorites]

A constitutional amendment is clearly not possible.

Without one I don't think you can get term limits or an ethics code without either packing the supreme court first or finally calling Marbury v Madison for the bluff it is and refusing to listen to supreme court rulings on the topic of supreme court reform. I can't honestly see Biden doing either because he's an institutionalist to his bones.
posted by zymil at 6:19 AM on July 17 [1 favorite]

I've been talking about term limits for Supreme Court justices for years. I think life appointments are just too chaotic.
posted by Nancy Lebovitz at 6:22 AM on July 17 [4 favorites]

I think some of us are cynical right now because we suspect he'd never signal he's open to Supreme Court reform if Nancy Pelosi wasn't working around the clock to replace him with a better candidate.
posted by coffeecat at 6:33 AM on July 17 [3 favorites]

My gut reaction is to say that an amendment is needed in order to get term limits for the Court. But ... What if Congress legislated something explicit about what constitutes "good behavior" for Supreme Court justices and included voluntarily stepping down after serving such and so many years as part of what is meant by "good behavior"? Then when justices refuse to step down, they can be impeached and removed based on the statute.
posted by Jonathan Livengood at 6:34 AM on July 17 [1 favorite]

So little, so late. His opposition to any sort of change in the Supreme Court has for years now blocked public momentum on that. Now he's suddenly realizing it's important? I'll take it, but fuck this is just another example of how he and his team have been the wrong folks for this moment from the get-go.
posted by mediareport at 6:39 AM on July 17 [2 favorites]

I think it is too little, amd I fear it is too late. But it is a giant step up from calling for adherence norms and institutions that have long been coopted by fascists.
posted by pattern juggler at 6:40 AM on July 17 [4 favorites]

It's also part of a standard pattern of national Dems making progressive promises in the months just before an election. If Biden wins, I don't expect him to put much political capital into actually making any changes to the Supreme Court.
posted by mediareport at 6:41 AM on July 17 [1 favorite]

Mod note: One comment removed. Be considerate and respectful and avoid telling people to "grow up".
posted by Brandon Blatcher (staff) at 7:27 AM on July 17 [3 favorites]

coffeecat, you might be right. But in that case good, the pressure is working.
posted by nat at 7:44 AM on July 17 [1 favorite]

I think the concern is that it won't last past the end of the electoral pressure.
posted by pattern juggler at 7:50 AM on July 17 [1 favorite]

Of course, nothing can ever be good enough. And for some, nothing can ever even be GOOD. Still, for plenty of us, this is good. Y'all can shit on it all you want. Still good. To be clear: not enough, not by a long shot. Still good.
posted by rikschell at 7:52 AM on July 17 [8 favorites]

I think there is room to acknowledge that these issues need to be addressed and that serious responses are good, qhile retaining skepticism about the sincerity of statement or the viability of the plan. I think we are all a little burned by political expectations the last few years.
posted by pattern juggler at 8:27 AM on July 17 [8 favorites]

The Supreme Court proposals are good on paper, but they have zero chance of being enacted without a Democratic House and a strong Democratic majority in the Senate, both of which seem increasingly unlikely with each passing day of bad polling for the Democrats.

The rumors are that these Supreme Court reforms, and the rent-control pledge, are the result of a deal AOC and Sanders struck with Biden. That in exchange for them not joining with the other members of Congress calling on him to step aside, he would publicly endorse some policy priorities of the progressive wing. This might be smart short-term positioning by AOC and Sanders. But, it's a terrible sign for his chances overall that the incumbent president is so weak that he's spending resources bolstering his left flank while he's also sinking further behind with swing voters with whom he's already underwater and needs to make up significant ground with to have any hope of winning in November.
posted by dyslexictraveler at 8:27 AM on July 17 [5 favorites]

His numbers sucked before the centrists started getting cold feet though, primarily though maybe not entirely because of repeatedly telling the left to go fuck itself.

Still backing genocide though, it should be noted.
posted by Artw at 8:30 AM on July 17 [1 favorite]

For far, far too long, even the most modest reforms were unthinkable, unmentionable.

I've been with my same-sex partner for 35 years and only in the last decade-ish have been able to legally marry him.

I never in my lifetime thought that was possible.

If this plants the idea into the minds of the people, LET'S GOOOOOOOO!!!!

To my ears, albeit very late to the table, Biden is signaling that he hears what people are screaming for.

If this gets legs, watch how people organize they way we did to get marriage equality. Once that happened, it was unstoppable.
posted by archimago at 8:45 AM on July 17 [20 favorites]

I remember Biden making a gaffe and saying that he supports same-sex marriage (I thought he might have been gaffe'ing like a fox but now I think it was a genuine mistake). The positive response to it started the ball rolling for Obama and the rest of his administration to get behind it. It got added as a plank in the Dem platform and now here we are.

Biden's comment was a small piece of a much larger puzzle and the hard work that everyone else did deserves more acknowledgement. But it's an example where Biden made a comment and it had real impact on policy.

I agree there's a large change it'll disappear like a fart in the wind but a lot of that depends on the house and senate races. Dems here in Minnesota got themselves all three houses and set to work. Republicans still held things up as much as they could but despite that, they've passed a TON of legislation that has had a real positive impact on the state.

So it's entirely possible that a 2nd Biden admin with enough of a majority in both houses will follow that model and get a ton of good stuff pounded though. A lot of the stuff we want around voting rights should both get people energized to vote and the expanded voting rights means even higher turnout. IE: It's a path to more power for dems so they've got a selfish reason to push for these kinds of things too.
posted by VTX at 9:03 AM on July 17 [5 favorites]

If Biden wins, I don't expect him to put much political capital into actually making any changes to the Supreme Court.

You can find similar predictions from four years ago for things he did or tried to do. One thing which gets lost a lot in these “let’s depress our own side!” threads is that Biden isn’t some torch-bearing crusader who will spend time on a lost cause - many things were dropped because Manchin/Sinema weren’t on board and they didn’t want to get the political cost when there just weren’t enough votes in Congress. Our reaction to something which seems hard should be asking which Democrats in close races need our support so he is re-elected with enough votes to actually do anything. The approach of giving up after a single term doesn’t change everything is what Republicans are counting on.
posted by adamsc at 9:18 AM on July 17 [10 favorites]

Sinema was a democrat in a close race, once.

Gallego, who is the actual dem running for her seat now, is now in a tight race (not much polling but he is consistently just barely ahead of Lake).

I have no idea if he’ll come out in support of SCOTUS reform, or if it will help or hurt his campaign if he does. But I would like to believe it would help.
posted by nat at 9:24 AM on July 17 [3 favorites]

Meanwhile TFG + his minions will push through a law saying justices get to pick their own successors
posted by gottabefunky at 9:25 AM on July 17 [2 favorites]

I wish there were more fighting for "lost causes". Because the role of a president as leader of his party isn't just trying to get things passed during their term. It is also shaping the political discourse and setting aspirations for the future.

I would love to see a world where the Republicans had to run on a record of voting for outlawing abortion, stopping medicare for all, and a $15 an hour federal minimum wage. Not just as positions they hold, but having those votes covered on the nightly news over and over again. Make them vote against plans to reduce taxes on the poor and raise them on billionaires, over and over.

If you want people to believe that if they give you power you will help them, show them what you want to do, and who is stopping you. Otherwise they might come to believe you only bring up their problems when you want their votes.
posted by pattern juggler at 9:36 AM on July 17 [10 favorites]

Hell, it's about time. Get it through ASAP
posted by GoblinHoney at 10:26 AM on July 17 [4 favorites]

Also yeah any chance for this would require filibuster reform. Welp, yeah, need that too.
posted by nat at 10:47 AM on July 17 [3 favorites]

Because the role of a president as leader of his party isn't just trying to get things passed during their term. It is also shaping the political discourse and setting aspirations for the future.

It also shapes the political discourse when a political project gets shot down in Congress. Right or worn, it creates the perception that the issue is an electoral loser, and the President who pushed it is diminished in power.

It was very clear at the time that who was stopping certain parts of Biden's agenda was Manchin and Sinema -- and neither one is going to be in the Senate come 2025.
posted by Gelatin at 10:57 AM on July 17 [2 favorites]

Unfortunately, it seems not unlikely that there might be other Dem Senators too gunshy to start bypassing the fillibuster, but who were using Sinema and Manchin as cover so they wouldn't have to declare themselves as such, but I guess we'll find that out the next time they get a president/senate/house trifecta again (I mean, if there is a next time).

But setting something like this as an overt priority -- with rhetoric about this being an out of control situation that has to be fixed for the survival of the country -- makes it more likely to get those 50 fillibuster-bypassing votes when the time comes, is what I figure.
posted by nobody at 11:19 AM on July 17 [3 favorites]

The Judiciary Act of 1789 “established the federal judiciary of the United States” and “set the number of Supreme Court justices at six: one Chief Justice and five Associate Justices.” The Seventh Circuit Act of 1807 “increased the size of the Supreme Court of the United States from six Justices to seven, and which also reorganized the circuit courts of the federal judiciary.” The Eighth and Ninth Circuits Act of 1837 increased the number of justices to nine. The Tenth Circuit Act of 1863 increased the number of justices to 10. The Judiciary Act of 1869 reduced the number of justices to nine.

The number of justices historically coincided with the number of circuit courts because Supreme Court justices used to have to “ride circuit.” Since there are now 13 circuits, 13 justices would be a nice nod to history. Plus, 13 colonies, 13 stripes on the flag, and so on.

(The Judiciary Act of 1801, AKA Midnight Judges Act, reduced the number of justices to five pending a vacancy, but no vacancy took place. The Judicial Circuits Act of 1866 reduced the number of justices to six, but it was superseded by the 1869 act.)
posted by kirkaracha at 11:31 AM on July 17 [10 favorites]

There is no way any of this is happening when its constitutionality would be decided by the current court. So, unless Biden is willing to put 4 more justices on the court (and also strong-arm congress into passing filibuster reform), this won't even get off the ground.

I'm honestly surprised at the naïveté I see on display here.

This is like his "first 100 days" plan, which seems to be a whole bunch of stuff he couldn't get done in his first, first 1,274 days.
posted by bashos_frog at 11:58 AM on July 17 [5 favorites]

The number of justices historically coincided with the number of circuit courts because Supreme Court justices used to have to “ride circuit.” Since there are now 13 circuits, 13 justices would be a nice nod to history. Plus, 13 colonies, 13 stripes on the flag, and so on.

Or if we're really dreaming big (and democratic), we could base it on population growth, which would yield a much larger Supreme Court. There's no reason cases couldn't be heard by a random group of 9 justices, with a rehearing by the full court required to overturn a prior precedent, similar to the way the Circuit courts (and some state supreme courts) work.

One of the astonishing things about the Supreme Court justices is how lazy and unproductive they are. Even as the population and number of petitions has increased, their staff size has grown, and electronic research tools have improved attorney productivity, the number of cases the Supreme Court actually decides has steadily decreased for decades, down to an abysmal 50-60 per year. Maybe if we required them to decide a decent number of cases per year then corrupt justices like Thomas and Alito would have less time to go on private plane rides.
posted by jedicus at 12:23 PM on July 17 [8 favorites]

Unfortunately, it seems not unlikely that there might be other Dem Senators too gunshy to start bypassing the fillibuster, but who were using Sinema and Manchin as cover so they wouldn't have to declare themselves as such

You may well be right, but it still means that unlike Manchin and Sinema, they didn't perceive that publicly opposing the Democratic agenda was good for their political careers.

Maybe, in a hypothetical 50-50 Democratic Senate with Biden as President and a Democratic House, some else will be willing to be the new Sinema. Or maybe they'll see she lost her Senate seat after she stabbed the progressives that she claimed to be one of in the back.
posted by Gelatin at 12:55 PM on July 17 [3 favorites]

Or if we're really dreaming big (and democratic), we could base it on population growth, which would yield a much larger Supreme Court. There's no reason cases couldn't be heard by a random group of 9 justices, with a rehearing by the full court required to overturn a prior precedent, similar to the way the Circuit courts (and some state supreme courts) work.

And since we're dreaming big, we could also revisit the Apportionment Act of 1911, which caps the House at 435 members, and allocate representation more proportionally to the population -- in other words, giving high population blue states like New York, California, Illinois, etc., more representation. Doing so would likely keep both the House and the Presidency (by virtue of its effect on the Electoral College) out of Republican hands for a while.

Of course, doing so would absolutely require junking the filibuster.
posted by Gelatin at 1:00 PM on July 17 [11 favorites]

I was at a Tim Kaine re-election event (he's up for re-election in Virginia this year) last night and he said that everywhere he's been in Virginia, people have asked him about the SC. He said two things - he has a bill that is co-sponsored I think by a senator in NH to get rid of the filibuster and he saw that as a necessary prerequisite to passing a bill for a code of ethics for the SC. He didn't mention term limits but wow, that would be an amazing thing to see.
posted by bluesky43 at 1:46 PM on July 17 [5 favorites]

Biden’s first 100 days were actually pretty productive, as these things go. Even Wikipedia has a whole page

So if it’s like that, then maybe I should be more optimistic. (I think it’s much more likely to be like Bill Clinton promising universal health care in the nineties— take a few decades and be weaker than we hoped for).
posted by nat at 1:52 PM on July 17 [6 favorites]

these “let’s depress our own side!” threads

Hey, I said I'll take Biden's newfound enthusiasm for changes to the Supreme Court. It's better than nothing. I was also over in the shooting thread laughing at that "the bullet hit Trump but it killed Biden" stuff; it's way too early for anyone to be giving up.

At this point I'm just assuming that MeFites participating in these threads are already doing things like donating to down-ballot candidates (so key, and getting much less focus than the presidential race), volunteering to send postcards or make calls with groups like Sister District, etc. But being clear-eyed about political patterns, realistic about what politicians suddenly promise the summer before an election, and holding onto hopes for something better, is not the same thing as "depressing our own side."
posted by mediareport at 2:25 PM on July 17 [2 favorites]

(The stuff about down-ballot "rolloff" at the Sister District site is fascinating, btw:

“Roll-off” is the term used to describe what happens when a voter ticks the top, but not the bottom, of their ballot...The difference in roll-off between the two parties is stark: across 10 battleground states over 8 years, contested down-ballot Democrats experienced ballot roll-off 80% of the time, compared to only 37% for their Republican counterparts...

State legislative races and chambers hinge on razor-thin margins...

-2020: In the Arizona House, it would have taken only 4,451 votes for Dems to win the 2 seats needed to flip the chamber. In that election, 584,000 people voted for Biden but did not vote all the way down the ticket. If just 0.8% of them had voted for their Democratic state legislative candidate too, Democrats would have won the chamber.

-2021: Democrats lost the Virginia House majority by ~750 votes across 3 districts. Meanwhile, 64,000 more votes were cast for the Democratic gubernatorial candidate Terry McAuliffe than for state legislative Democrats. If just 1% of them had voted for their Democratic state legislative candidate too, Democrats would have kept the House majority.

Here's their research.)
posted by mediareport at 2:38 PM on July 17 [6 favorites]

There was a funny NPR video on "the future of fundraising" where the punchline is the guy opening the box, pausing, and then quietly swearing, "its a fucking tote bag?"

And that's my energy with this right now. Wow, Biden chose the absolute most impossible challenge of a political maneuver and the least relevant branch of government when it comes to reining in people who nullify laws and norms.

If you woke me up from a coma and read me this news I'd ask if we were in election season.
posted by Slackermagee at 2:46 PM on July 17 [1 favorite]

[...]and the least relevant branch of government when it comes to reining in people who nullify laws and norms.

The reason I expect wider-spread support for whatever this (eventually) takes is that fixing the Supreme Court, one way or another, is going to be a precondition for continuing to have fair(ish) elections at all. So if your cynical take is that this is just a pre-election stunt, continue that thread of cynicism along further and you might find that a group of equally cynical politicians could very well do something on this front out of mere political self-preservation, if not for all the other reasons a decent(ish) society requires.

(And then maybe it'll take the SC striking these reforms down before they go ahead and pack the court?)
posted by nobody at 3:04 PM on July 17 [6 favorites]

Its absolutely incredible that after a lifetime of tut-tutting about the art of the possible it becomes cynical to know that we need X states and Y senators
posted by Slackermagee at 3:37 PM on July 17 [4 favorites]

Question for a constitutional law expert: is it really 100% clear that SC judges must have lifetime appointments? All I can find in discussions is stuff like “it is generally agreed to mean …” but Article III doesn’t say that (just the bit about good behavior). Is this just a custom ? Are there contemporaneous docs that make the intent clear? When I read it, I come away thinking they didn’t address term length one way or the other. It also seems contrary to every other office and to the framers’ intent to avoid king vibes.
posted by caviar2d2 at 3:48 PM on July 17 [1 favorite]

Yes, it is a proposal, but he also said "cancer alley" at the beginning of this term.he obviously had no idea what he was saying, his Dept of Rnergy makes that clear.

Locals started messaging "cancer alley" as the place where US law is repeatedly defiled in 1988. We are so much closer to implementing the clean air act than ever, four short years.

In summary, the shit jusr takes time. Yes, this should have happened at Dobbs, but get with your folks. Talk to people of the need to change the court.
posted by eustatic at 4:01 PM on July 17

Biden should appoint ten new justices, and if the right complains, let them keep suing until the supreme court decides if their appointments are valid.
posted by pattern juggler at 4:02 PM on July 17 [3 favorites]

Its absolutely incredible that after a lifetime of tut-tutting about the art of the possible it becomes cynical to know that we need X states and Y senators

(Sorry, I should have been more careful. What I was calling cynical was a conflation of your "must be an election year" comment with someone's earlier comment stating more starkly that this was obviously merely a pre-election stunt because a second term Dem whitehouse would spend no political capital trying to get those votes. It's obviously not cynical at all to realize that without (eventual?) Dem majorities in both houses there's nothing to follow up on with any of this.)
posted by nobody at 4:43 PM on July 17 [2 favorites]

I have in the past suggested a middle-ground approach to SCOTUS reform that I still sort of think would work:

A SCOTUS appointment is still for life, but a Justice is considered an active member of the court for ten years only. After the ten years are up, a Justice transitions to an emeritus/advisory status. The ten-year active term is long enough for a Justice to have a meaningful impact, and staggers appointments relative to Presidential terms. Other statutory adjustments may be passed by the legislature to prevent undue clustering of appointments.

The vacancy created after the ten years are up has immediate effect, leaving the vacancy until a replacement is confirmed. Except in cases of unexpected death, retirement or removal of a Justice, the President will be well advised to begin nomination and confirmation hearings well in advance of a scheduled active term limit.

Justices Emeritus would be welcome to hear cases, join deliberations and author opinions at their discretion. If they want to treat the term limit as a retirement and their pay as a pension, that’s fine too. To the extent they choose to continue serving on the Court, their opinions would be part of the public record. Only active Justices would have voting authority. Emeritus concurrences have precedent value only to the extent they are cited in opinions from the active court.

We can afford to pay a very few people forever, and thus retain the benefits often ascribed to lifetime appointments. A Justice Emeritus could lose their pay only via impeachment. Any conflict of interest between serving on the Court and any post-term activities would be considered impeachable. Impeachment of a Justice after their active term would be a much lower-stakes affair, and while Thomas has notoriously said that a Justice’s pay isn’t worth getting out of bed for, I’d bet the prospect of having it for as “fun money” for life would be worth a certain avoidance of transparent corruption for the initial ten year term.

This approach would let us retain the wisdom of seasoned older Justices without potentially shackling us to a corrupt or biased Justice for decades. It also reduces incentive for Justices to game the timing of their retirements, eliminates the gross “death-watch” phenomenon and reduces the drama around appointments. The “this changes the whole country for fifty years” thing goes away, the incentive to lock in a particular majority or put ideological hacks on the bench is reduced, and with it the amount of political capital a President or Senator is willing to spend on controversy in a nomination. In the best case SCOTUS appointments become boring.
posted by gelfin at 3:26 PM on July 18 [3 favorites]

This looks like a pretty piss-weak start, but it's a start. The thing is, he doesn't need to actually succeed at any of these reforms, because he'll get the benefit he needs just from talking about them, so he can afford to talk about them much more strongly than just 'rumoured to be thinking about endorsing some hand-wavy reforms'. Coming out strong and saying he will push for these reforms when he's re-elected would give him the support of many people that want changes is enough, because it forces the opposition to come out and oppose reforms that lots of voters want to see. Any such changes would, at best, take the entirety of his second term and most likely fail. But they would continue to add strength to the Democrats just by showing support for the people and, on the other side, force the Republicans to publically come out against popular reform.

As always, the Democrats are too scared to show their hand and stand up for what they know is right.
posted by dg at 4:37 PM on July 18 [2 favorites]