HANS VON SPAKOVSKY AND THOMAS JIPPING: Biden’s Attempt To Control The Supreme Court Is Unconstitutional

President Joe Biden must like campaigning. He ended his own re-election bid but has joined the Left’s campaign to control the Supreme Court by any means necessary. He has endorsed old ideas like term limits and an “enforceable ethics code,” abandoning his past support for an independent judiciary. He now considers that independence an obstacle to be overcome rather than a principle to be defended.

Biden’s Washington Post piece on Monday misleads the American people in three ways. First, simply because the Constitution limits the terms of presidents does not mean the Supreme Court must follow suit. He makes no such proposal for the Senate, where he boasts that he served for 36 years.

In fact, the Founders chose not to limit Supreme Court terms as a buffer against political manipulation. And the fact that judges on the lower federal courts follow particular rules does not mean the Supreme Court must do likewise. Congress created the lower courts and, therefore, has more authority over them than over the Supreme Court, which was created by the Constitution itself. 

Second, Biden is parroting the Left’s misleading talking points about the need for the kind of “reforms” he now supports. The “ethics scandal” he refers to, for example, is pure fiction. Many Americans who hear about “undisclosed gifts” will likely think that a justice was required to disclose something that may properly be called a gift. These assumptions, however, are false.

Biden also repeats the deceptive suggestion that a justice should recuse himself whenever someone he knows, or even is married to, has an “interest in” a particular case. That is not the standard in either the federal recusal statute or the court’s own code of conduct.

Biden paints this misleading picture so he can claim that “reforms” are needed to address these fake problems. The “enforceable ethics code” he wants, for example, would allow anyone to file unlimited complaints that must be investigated and evaluated about anything a justice does – including votes or opinions that do not promote favored political interests. That kind of manipulation and harassment, which the Left excels at, is the real reason for this proposal.

And then there is Biden’s call for an 18-year term limit for Supreme Court justices. He notes that presidents have been subject to term limits for nearly 75 years. Since that change required a constitutional amendment, Biden must be conceding that Supreme Court term limits would as well.

But the Left really does not care about how long a justice serves. After all, liberal justices such as John Paul Stevens, Ruth Bader Ginsburg, and Stephen Breyer each served for more than 18 years, but Biden never called for limiting their terms. Like others on the Left, Biden only objects to what justices he disagrees with do when they get to the court, not how long they might be doing it.

The “reform” the Left really wants is not in the way the Supreme Court is structured, but in the decisions it renders on certain subjects. They do not like recent decisions such as SEC v. Jarkesy, in which the Supreme Court held that the right to a jury trial in the 7^th Amendment prevents the government from being the judge, jury and executioner in administrative hearings that bypass the court system. Or Loper Bright Enterprises v. Raimondo, where the Court overruled a 1984 precedent that allowed executive branch agencies to, in effect, define their own power.

And, of course, Biden and the Left are most unhappy with the decision in Dobbs v. Jackson Women’s Health Organization, in which the Supreme Court held that a Constitution that says nothing about abortion does not protect any right to abortion, thus returning the legal issue to the states where it existed for 200 years prior to the fantastical Roe v. Wade.

Finally, Biden attacks the Supreme Court for its decision on presidential immunity in Trump v. U.S. Biden falsely claims that this turns our presidents into “kings or dictators” and gives them “absolute” power. No one who actually reads the decision could reasonably describe it that way.

The Supreme Court simply clarified that presidents are entitled to presumptive immunity from criminal prosecution for their official acts under basic principles of separation of powers. The court previously ruled in 1982 that presidents are immune from civil liability for their official acts – a decision Biden never once complained about

This does not give presidents unlimited power. They can be impeached, removed from office and barred from ever holding office again. Moreover, they are then subject to “Indictment, Trial, Judgment and Punishment” under Section 3 of Article I. And they can be criminally prosecuted for unofficial acts.

Even in this recent decision, the Supreme Court sent the case back to the trial court to apply the proper standard to Trump’s case. Biden is jumping on the propaganda bandwagon without even knowing how this case will play out.

Any holding to the contrary, as Biden proposes, would make it extremely risky for a president to take the actions that are all too often needed for national security and in the foreign policy area. Or does Biden now hold that ordering drone strikes on terrorists, for example, should subject the president to potential prosecution for murder?

Biden obviously wants to use the Constitution as a prop and the Supreme Court as a punching bag. The public’s ignorance about our system of government in general, and the judiciary in particular, is something to be remedied, but Biden sees it as something to manipulate for political gain.

The Founders believed an independent judiciary is “essential” for the liberty that our system of government makes possible. By undermining that independence for political gain, Biden is putting our liberty at risk.

Hans von Spakovsky and Thomas Jipping are Senior Legal Fellows in Edwin Meese III Center for Legal and Judicial Studies at the Heritage Foundation.

The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller News Foundation.

(Featured image credit: Screen Capture/CSPAN)