Biden’s Supreme Court reforms are unconstitutional. He knows that

It’s not uncommon for political movements to arise from court decisions that don’t go the way activists or political leaders want them to. It’s also not uncommon for those leaders and activists to pursue significant measures to remove what they see as obstacles to their goals.

I can easily think of more than one circumstance in which conservatives tried to stem resistance at the source. In 2009, the Iowa Supreme Court issued a unanimous decision overturning the state’s ban on same-sex marriage, effectively legalizing it years before same-sex marriage was legalized nationwide.

In response, conservative Christian organization The Family Leader led a successful effort to oust the justices who delivered the landmark decision. All three Iowa Supreme Court justices who were up for retention in 2010 were rejected by voters, their vacancies subsequently filled by then-newly-returned Gov. Terry Branstad.

In 2018, after Planned Parenthood challenged a 72-hour waiting period on abortions passed in 2017, the Iowa Supreme Court blocked the waiting period - and declared abortion a constitutional right in Iowa. Legislative Republicans then passed the first vote to start the process for a constitutional amendment that would explicitly state that the Iowa Constitution does not grant the right to an abortion.

As disagreeable as some find those actions, they were at least attempted — and in The Family Leader’s case, achieved — through the correct process via legally prescribed channels.

I can’t say the same thing about a proposal to radically change the Supreme Court recently announced by President Joe Biden. As a matter of fact, nor can he — when asked by reporters about legal pushback on his plan, the best the president could say was that they would “figure out a way.”

(He said he same thing about invoking he 14th Amendment to raise the debt ceiling without the involvement of Congress.)

On July 29, President Biden announced three proposed changes to the US Supreme Court. One was an amendment to the U.S. Constitution specifying that there is no immunity for crimes a former president commits while in office. The amendment would require a two-thirds vote of both the Senate and House of Representatives and would then need to be ratified by at least 38 states.

Simply put, that’s not going to happen.

Another proposal would introduce a binding code of conduct for Supreme Court justices, presumably implemented through legislation. While not explicitly prohibited in the Constitution, it still requires more than a hint of caution, according to a report from the President’s Commission on the Supreme Court of the United States, which was assembled in April 2021 to analyze arguments for and against court reform.

“If Congress were to write a code (of conduct,) it would need to be careful to ensure that the code’s demands did not encroach on the Court’s constitutionally exclusive judicial decisionmaking function,” states the commission’s December 2021 report.

The most radical change the president proposed, however, is to limit Supreme Court judges to 18 years of “active service” on the bench and have the president appoint a new justice every two years. It’s unclear whether such a change, if implemented, would apply immediately and dismiss any judge who has served for over 18 years, but if it did, that would instantly end the service of three justices, all appointed by Republican presidents. In that scenario, should presumed Democratic nominee Kamala Harris win the November election, she would instantly have three Supreme Court picks.

Like Biden’s proposed constitutional amendment on presidential immunity, the proposal for term limits won’t happen. Because unlike the immunity proposal, the President’s term limits proposal has not been described as a constitutional amendment.

That will be a problem if he wants his proposal passed. Article III of the Constitution states that all federal judges “shall hold their Offices during good Behaviour,” (sic) which has consistently been interpreted to mean a lifetime appointment ending only with a justice’s retirement, death or impeachment and subsequent removal.

The Constitution is the supreme law of the land in the United States. That was determined over 220 years ago, in the landmark Supreme Court case Marbury v. Madison. Most people know Marbury v Madison as the Supreme Court case that established the court’s role of judicial review, but few likely know specifically how the Court came to make that determination.

It’s quite interesting, actually. William Marbury was one of several dozen justices of the peace appointed by President John Adams just before the expiration of his single presidential term in 1801. Marbury and the others were confirmed by the Senate on March 3, 1801, Adams’ last full day in office, but Secretary of State John Marshall failed to deliver the commission papers to four of the men, including Marbury.

After Thomas Jefferson took office the next day, he immediately ordered his new Secretary of State, James Madison, not to deliver the remaining commissions to the confirmed justices. Marbury sued. Taking his case directly to the Supreme Court, he sought a writ of mandamus, or a court order to that compels a government official to perform a specific act.

The Court found that Marbury was indeed illegally denied his commission, and that he was even entitled to a remedy. But the Court also determined that it had no power to issue the writ of mandamus Marbury sought to force Madison to deliver his commission.

Why didn’t the court have power to issue the writ of mandamus? Marbury had gone directly to the Supreme Court under a provision of the Judiciary Act of 1789, which gave the Court what is called “original jurisdiction” to issue a writ of mandamus. The Constitution, however, indicated that in cases like Marbury’s, the Court had only “appellate jurisdiction,” or the power to review and act on decisions only once they came from a lower court.

Despite attempting to do so, Congress lacked the authority to grant original jurisdiction to the Court. In turn, the Court lacked the authority to issue the writ of mandamus on Marbury’s behalf. Writing for the Court’s majority, Chief Justice John Marshall — ironically, the same John Marshall who previously served as Secretary of State and failed to deliver Marbury’s commission — emphasized the supremacy of the Constitution.

“ … in declaring what shall be the supreme law of the land,” wrote Marshall, “the Constitution itself is first mentioned, and not the laws of the United States generally, but those only which shall be made in pursuance of the Constitution, have that rank.

“Thus,” he continued, “the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument.”

In 1803, the Constitution’s function as the supreme law of the land meant that the courts couldn’t force the Jefferson administration to give Marbury his commission. Marbury never received it.

In 2024, that same Constitution’s function means that Biden’s plan to limit Supreme Court justices to 18-year terms through legislation has no chance of surviving that same process of judicial review.

Given all that, it’s particularly curious that the President would try to impart such radical changes that so obviously clash with the Constitution.

It suggests one of two possibilities: either the President failed to consider the proper methods and channels, committing another unforced error that puts our nation’s weakness on display; or the initiative he rolled out in the lame duck remainder of his presidency isn’t actually designed to take effect.

Why waste the energy, then? Why go after the Supreme Court if the plan is destined to fail?

Because now we’re talking about the court, and not the failed policies of a weak president or the second-in-command who hopes to replace him. Now we’re discussing the things that incense liberal and progressive voters. To Biden and Harris, the court makes a good scapegoat for anything their base doesn’t like, while putting anyone who opposes the proposed changes on the defensive.

Returning abortion questions to the states? Saying “nope” when the president tries to unilaterally wipe out hundred of billions in student debt? Saying powerful federal agencies can’t interpret vague laws that they then rigidly enforce? Saying cities don’t have to let the homeless take over their public parks? Saying Big Bad Orange has immunity for official acts? According to Joe Biden, it’s all the fault of a corrupt court that threatens our very democracy.

When things don’t go as you like, throw the system into chaos and sow doubt and distrust. For someone who accuses former President Donald Trump of just that, President Biden is pretty good at doing the same.

“What is happening now is not normal, and it undermines the public’s confidence in the court’s decisions, including those impacting personal freedoms,” Biden wrote in his July 29 op-ed.

Technically, he’s right. But if the president really wants to point his finger at those who are undermining public confidence in the court, he shouldn’t skip the guy in the mirror.

Comments: 319-398-8266; althea.cole@thegazette.com