The Biden proposals on Supreme Court "reform" are framed by their proponents as an attack on a corrupt Republican Supreme Court. Thus, the "reform" is politically partisan and should be treated as such. But some of the ideas in the proposal are interesting in their own right and would be worthy of serious discussion if they were proposed in a more politically neutral manner. I support an 18 year term limit on the justices, although I believe a constitutional amendment is required to institute it and it should only be imposed prospectively.
I might support a constitutional amendment overturning Trump v. United States, since it is a nonoriginalist decision. However, I believe that it is important for there to be a recognition that it was prompted by a serious violation of norms about prosecuting one's political opponents.
Finally, I am not uniformly hostile to a binding ethics code for the Supreme Court Justices with an enforcement mechanism. I am not certain whether or not it would be a good idea, but it is not out of the question.
What is out of the question is an ethics code and enforcement mechanism that is open to politicization. If political groups can register complaints or seek recusal, then this could have very harmful effects indeed on the Court and its perceived legitimacy. As the Wall Street Journal noted, the 11th Circuit received “more than 1,000 complaints in a week as part of what it called an ‘orchestrated campaign’” against Judge Aileen Canon, who was sitting on the Donald Trump documents case.
But not all such reform proposals have these undesirable characteristics. For example, imagine the following arrangement that would govern recusals. There is a binding ethics code and enforcement mechanism. Only the parties to the case can seek recusal. The initial decision is reached by the Supreme Court Justice him- or herself. If he or she decides not to recuse, the party can seek review by the entire Supreme Court. Since there are 8 remaining Justices, it would require 5 votes to overturn the Justice’s initial decision not to recuse.
I am not sure whether or not this arrangement would be an improvement. But it does not seem likely to have a major negative effect, so long as it was adopted during a period when it was no longer associated with a partisan critique of a Republican Court. Still, I have not studied the matter nor do I have much expertise in this area. If you think I am mistaken, please let me know.
Posted at 8:00 AM