On Monday, July 29th, President Joe Biden proposed a new amendment to the U.S. Constitution. It would impose term limits on the justices and force them to abide by an “ethics code.”
This sounds innocuous, doesn’t it? Well, it is anything but. It is the first salvo of an unabashed attempt by the Democratic Party to fundamentally alter the balance of power between the three branches of the United States government.
The Democrats have long been frustrated with how the Supreme Court can stifle their political agenda by ruling that some of the things they want to do are actually unconstitutional. As long as they could appoint justices that were more aligned with the Democratic Party’s ideology than with the Constitution of the United States, the Democrats were happy. Now that the Court has a solid majority of constitution-friendly justices, the Democrats are frustrated.
Here is what President Biden said when he presented the amendment in an op-ed for the Washington Post:
First, I am calling for a constitutional amendment called the No One Is Above the Law Amendment. It would make clear that there is no immunity for crimes a former president committed while in office.
This is a response to the recent decision by the Supreme Court on presidential immunity. The Court established that former presidents have immunity from prosecution for official acts that they took while in office. In other words, a president cannot be prosecuted for policy decisions made while being president.
If Biden’s amendment were to be passed, the political adversaries of a sitting president could use—or abuse—the judicial system to go after him for his policy decisions once he has left office. As an example, President Trump could have gone after President Obama for giving enormous amounts of money to Iran, a country widely considered a terrorism sponsor. Trump could have had Obama prosecuted for aiding and abetting terrorism.
I am sure there are at least a couple of Obama supporters out there who are happy that Trump could not do this. Under Biden’s amendment, though, such prosecutorial actions suddenly become possible; the judicial system becomes a weapon in disputes over policy.
But wait—there’s more. Back to the Washington Post:
Second, we have had term limits for presidents for nearly 75 years. We should have the same for Supreme Court justices. The United States is the only major constitutional democracy that gives lifetime seats to its high court.
I have not reviewed the appointment conditions for highest-court justices in other countries, but President Biden may very well be right. That, however, is not an argument for his amendment. On the contrary, it should raise the very pertinent question of why we are alone in giving these lifetime appointments.
The answer is simple: it guarantees that the Supreme Court of the United States remains an independent branch of the federal government. All three branches are separate from each other, and equal in power—a feature that is unique to the U.S. Constitution and a reason why our founding document has stood the test of time for almost 250 years.
President Biden and his Democratic Party want to end this structure. They are perennially unhappy with our constitutional foundation. It interferes with their ambition to transform America in the image of their radical ideology. This interference is aimed at two institutions: the U.S. Senate, where the minority has a lot more power than a simple party alignment count suggests; and the Supreme Court.
The Left has been after the U.S. Senate for years. As an intermediate strategy, they are once again putting the so-called filibuster in their crosshairs. This is the Senate rule that allows the minority to force a 60-vote approval of legislation, as opposed to the normal 51-vote majority.
With Biden’s proposed constitutional amendment, the Left literally takes their ideological fight to the Supreme Court.
On the face of it, the proposal for Supreme Court justice term limits comes across as fair and reasonable. President Biden wants to impose a maximum 18-year term on the Supreme Court. He wants the appointments to be staggered, so that a seat opens up every two years.
It is ironic to see this proposal from a man who, in the very same op-ed, brags about serving 36 years in the Senate.
The problem with Biden’s term-limit proposal (for justices, not senators) is that it does not make a material difference. Justices do not become more ‘accountable,’ as Biden says he wants them to be, and it does not substantially change the balance between left-wing and constitutional justices. A Republican president who serves two terms, and his vice president who is elected for one term as his successor, would control six Supreme Court appointments. Those six justices would all sit for 18 years; in effect, it would take 22 years before any president would be able to alter that six-judge majority.
Unless Democrats expect to win every election going forward, this construction makes no sense, even from their own ideological viewpoint.
There is something missing, a piece of this Supreme Court reform that the president has not yet released.
That missing piece is ‘reappointment eligibility’ for Supreme Court justices.
Why? Here is why.
As long as Supreme Court justices cannot be reappointed, they cannot be evaluated by Congress and the President while serving on the Court. Without this evaluation process, the legislative and executive branches of government have no effective control over the judicial branch.
That control is what the Democrats are after. To be blunt: they want to be able to punish the court for ruling ‘the wrong way’ as Democrats see it. They want justices to fear that if they rule against Democrat ideology—for example by ending the federal government’s protection of abortion—the justices will be punished by not being reappointed.
For this reason, we should expect the final version of this amendment to have another term structure. The 18-year term limit could easily be split so that a justice is allowed to serve three consecutive six-year terms on the Court. If the president and Congress approve of their rulings, they can be reappointed twice; if their rulings displease the president or the Congressional majority, the justices would be replaced by fresh names.
At this point, the Supreme Court and the entire judicial branch cease to exist as an independent branch of government. When the justices serve at the mercy of Congress, the constitutional separation of powers is destroyed.
This is, of course, the very purpose behind the amendment, which—again—is why we should expect Biden’s idea of one 18-year term to only be the starting point of the Left’s attack on the independent judicial branch.
Should this amendment pass, there will be more to come. If the Democrats cannot rewrite the Senate’s filibuster rules, they will slowly but steadily rev up a debate over whether to abolish the U.S. Senate. Once they have gotten people used to ‘constitutional reform’, they will target the ten first amendments, a.k.a., the Bill of Rights. Highest on their agenda is, of course, the eradication of the Second Amendment and its protection of our gun rights.
As it looks today, the Biden amendment does not stand much chance. It must be approved by Congress as well as 38 of the 50 states, which means an approval vote in at least 75 state legislative chambers (Nebraska is a unicameral state). With Republicans controlling the legislatures in at least 29 states, the amendment stands no chance of passing.
Democrats know this, of course. Their goal is to wage a political war of attrition against the Republicans and gradually grind them down to insignificance. Their goal is also to make this amendment an election issue going into November. If they win, they will use the president’s powers and prestige to push this amendment idea.
Once they have this amendment, there will be more to come.
Democrats Declare War on the Constitution
United States Supreme Court Building
Photo: Joe Ravi, CC BY-SA 3.0, via Wikimedia Commons
On Monday, July 29th, President Joe Biden proposed a new amendment to the U.S. Constitution. It would impose term limits on the justices and force them to abide by an “ethics code.”
This sounds innocuous, doesn’t it? Well, it is anything but. It is the first salvo of an unabashed attempt by the Democratic Party to fundamentally alter the balance of power between the three branches of the United States government.
The Democrats have long been frustrated with how the Supreme Court can stifle their political agenda by ruling that some of the things they want to do are actually unconstitutional. As long as they could appoint justices that were more aligned with the Democratic Party’s ideology than with the Constitution of the United States, the Democrats were happy. Now that the Court has a solid majority of constitution-friendly justices, the Democrats are frustrated.
Here is what President Biden said when he presented the amendment in an op-ed for the Washington Post:
This is a response to the recent decision by the Supreme Court on presidential immunity. The Court established that former presidents have immunity from prosecution for official acts that they took while in office. In other words, a president cannot be prosecuted for policy decisions made while being president.
If Biden’s amendment were to be passed, the political adversaries of a sitting president could use—or abuse—the judicial system to go after him for his policy decisions once he has left office. As an example, President Trump could have gone after President Obama for giving enormous amounts of money to Iran, a country widely considered a terrorism sponsor. Trump could have had Obama prosecuted for aiding and abetting terrorism.
I am sure there are at least a couple of Obama supporters out there who are happy that Trump could not do this. Under Biden’s amendment, though, such prosecutorial actions suddenly become possible; the judicial system becomes a weapon in disputes over policy.
But wait—there’s more. Back to the Washington Post:
I have not reviewed the appointment conditions for highest-court justices in other countries, but President Biden may very well be right. That, however, is not an argument for his amendment. On the contrary, it should raise the very pertinent question of why we are alone in giving these lifetime appointments.
The answer is simple: it guarantees that the Supreme Court of the United States remains an independent branch of the federal government. All three branches are separate from each other, and equal in power—a feature that is unique to the U.S. Constitution and a reason why our founding document has stood the test of time for almost 250 years.
President Biden and his Democratic Party want to end this structure. They are perennially unhappy with our constitutional foundation. It interferes with their ambition to transform America in the image of their radical ideology. This interference is aimed at two institutions: the U.S. Senate, where the minority has a lot more power than a simple party alignment count suggests; and the Supreme Court.
The Left has been after the U.S. Senate for years. As an intermediate strategy, they are once again putting the so-called filibuster in their crosshairs. This is the Senate rule that allows the minority to force a 60-vote approval of legislation, as opposed to the normal 51-vote majority.
With Biden’s proposed constitutional amendment, the Left literally takes their ideological fight to the Supreme Court.
On the face of it, the proposal for Supreme Court justice term limits comes across as fair and reasonable. President Biden wants to impose a maximum 18-year term on the Supreme Court. He wants the appointments to be staggered, so that a seat opens up every two years.
It is ironic to see this proposal from a man who, in the very same op-ed, brags about serving 36 years in the Senate.
The problem with Biden’s term-limit proposal (for justices, not senators) is that it does not make a material difference. Justices do not become more ‘accountable,’ as Biden says he wants them to be, and it does not substantially change the balance between left-wing and constitutional justices. A Republican president who serves two terms, and his vice president who is elected for one term as his successor, would control six Supreme Court appointments. Those six justices would all sit for 18 years; in effect, it would take 22 years before any president would be able to alter that six-judge majority.
Unless Democrats expect to win every election going forward, this construction makes no sense, even from their own ideological viewpoint.
There is something missing, a piece of this Supreme Court reform that the president has not yet released.
That missing piece is ‘reappointment eligibility’ for Supreme Court justices.
Why? Here is why.
As long as Supreme Court justices cannot be reappointed, they cannot be evaluated by Congress and the President while serving on the Court. Without this evaluation process, the legislative and executive branches of government have no effective control over the judicial branch.
That control is what the Democrats are after. To be blunt: they want to be able to punish the court for ruling ‘the wrong way’ as Democrats see it. They want justices to fear that if they rule against Democrat ideology—for example by ending the federal government’s protection of abortion—the justices will be punished by not being reappointed.
For this reason, we should expect the final version of this amendment to have another term structure. The 18-year term limit could easily be split so that a justice is allowed to serve three consecutive six-year terms on the Court. If the president and Congress approve of their rulings, they can be reappointed twice; if their rulings displease the president or the Congressional majority, the justices would be replaced by fresh names.
At this point, the Supreme Court and the entire judicial branch cease to exist as an independent branch of government. When the justices serve at the mercy of Congress, the constitutional separation of powers is destroyed.
This is, of course, the very purpose behind the amendment, which—again—is why we should expect Biden’s idea of one 18-year term to only be the starting point of the Left’s attack on the independent judicial branch.
Should this amendment pass, there will be more to come. If the Democrats cannot rewrite the Senate’s filibuster rules, they will slowly but steadily rev up a debate over whether to abolish the U.S. Senate. Once they have gotten people used to ‘constitutional reform’, they will target the ten first amendments, a.k.a., the Bill of Rights. Highest on their agenda is, of course, the eradication of the Second Amendment and its protection of our gun rights.
As it looks today, the Biden amendment does not stand much chance. It must be approved by Congress as well as 38 of the 50 states, which means an approval vote in at least 75 state legislative chambers (Nebraska is a unicameral state). With Republicans controlling the legislatures in at least 29 states, the amendment stands no chance of passing.
Democrats know this, of course. Their goal is to wage a political war of attrition against the Republicans and gradually grind them down to insignificance. Their goal is also to make this amendment an election issue going into November. If they win, they will use the president’s powers and prestige to push this amendment idea.
Once they have this amendment, there will be more to come.
READ NEXT
The Enterprise State
Play the Ball, not the Man: Cancel Culture’s Attempt To Capture Hungarian Academia
Starmer’s War on Farmers: a New Low for Client Politics