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court reform
Harris Backs Biden Call for Supreme Court Overhaul, Immunity Reversal
"These popular reforms will help to restore confidence in the court, strengthen our democracy, and ensure no one is above the law," said Vice President Kamala Harris, the presumptive Democratic nominee.
Jul 29, 2024
U.S. President Joe Biden on Monday detailed his plan to reform the U.S. Supreme Court and address one of its most controversial recent decisions in an op-ed published by The Washington Post.
Vice President Kamala Harris, the presumptive Democratic presidential nominee, quickly endorsed his plan, which calls for term limits for Supreme Court justices, an enforceable code of ethics, and a constitutional amendment reversing the court's decision to grant presidents broad immunity for official acts.
"These popular reforms will help to restore confidence in the court, strengthen our democracy, and ensure no one is above the law," Harris said in a statement.
"Americans deserve a Supreme Court they can trust. It's time for Congress to follow the White House's lead and take action to rein in this out-of-touch court."
After long resisting calls to push court reform, Biden told progressive lawmakers he would propose a plan earlier this month. His shift came weeks after a series of court rulings that granted current and former U.S. presidents broad immunity; overturned the Chevron doctrine empowering federal agencies to rely on their expertise in crafting environmental, public health, labor, and other regulations; and supported the criminalization of homelessness.
The majority-conservative Supreme Court—three of whose members were appointed by former U.S. President Donald Trump—has also in recent years reversedRoe v. Wade, ended affirmative action, and struck down Biden's student loan forgiveness program. It has done all this even as Justices Clarence Thomas and Samuel Alito have been at the center of a series of ethics scandals involving undisclosed gifts from right-wing billionaires and a refusal to recuse themselves from Trump's immunity case despite signals that they or their loved ones supported the January 6, 2021 insurrection to overturn the 2020 election results.
"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 on Monday. "We now stand in a breach."
Biden first called for an amendment to the Constitution called the "No One Is Above the Law" amendment, which would address the court's decision on presidential immunity by clarifying that no president is broadly immune from criminal prosecution, including for official acts.
"We are a nation of laws—not of kings or dictators," Biden wrote.
Next, Biden backed a system of term limits for the court whereby a president would appoint one justice every two years to serve a total of 18 years.
"The United States is the only major constitutional democracy that gives lifetime seats to its high court," Biden noted. "Term limits would help ensure that the court's membership changes with some regularity. That would make timing for court nominations more predictable and less arbitrary. It would reduce the chance that any single presidency radically alters the makeup of the court for generations to come."
Finally, the president called for a binding ethics code, as every other federal judge is subject to.
"This is common sense," Biden wrote. "The court's current voluntary ethics code is weak and self-enforced. Justices should be required to disclose gifts, refrain from public political activity, and recuse themselves from cases in which they or their spouses have financial or other conflicts of interest."
Biden stopped short of endorsing court expansion, a move backed by many court reform advocates. It is also unlikely that any of Biden's proposals would currently pass the Republican-controlled House or win over the 60 votes needed in the Senate.
"President Biden's plan renews the system of checks and balances and also establishes binding ethics reforms for a court that has been embroiled in scandal in recent years."
Still, his proposal was welcomed by accountability and good governance groups.
"This is a remarkable and historical step forward on the path to reforming SCOTUS," Wendy Weiser, vice president for democracy at the Brennan Center for Justice, said on social media. "No one should have public power for so long; no one should be the judge in their own case; and no one should be above the law."
Craig Holman, Ph.D., government affairs lobbyist for Public Citizen, said in a statement: "The White House's endorsement of these critical court reforms comes at a time of increasing questions about the lack of transparency and accountability at the court. The White House's new calls for court reform will vastly boost the prospects of moving this reform legislation forward."
Public Citizen co-president Lisa Gilbert said that the group "enthusiastically supports this effort by the Biden-Harris administration and lawmakers to impose term limits and a binding code of ethics on the Supreme Court, and we applaud the support for an amendment to ensure that no president is above the law."
Stand Up America noted that court reform is widely popular with U.S. voters: A vast majority want Congress to pass reform, including 18-year term limits, and 78% want it to impose a code of ethics.
"Americans' confidence in the Supreme Court is at historic lows, which is no surprise given the Roberts Court's blatant disregard for ethical standards, long-standing precedent, and Americans' fundamental freedoms," Stand Up America's executive director, Christina Harvey, said. "We applaud President Biden and Vice President Harris for supporting urgently needed reforms to restore trust in our nation's highest court."
Stand Up America's founder and president Sean Eldridge said on social media that the 18-year term-limit proposal in particular was a "huge step forward for meaningful court reform."
Both Eldridge and Harvey noted that 49 out of 50 U.S. states impose either term limits or retirement ages on their top judges, or have them chosen via election.
"The Supreme Court should be the gold standard for judicial ethics, yet conservative justices have accepted millions of dollars in gifts, attended private retreats with billionaire conservative donors, and failed to meet legal disclosure requirements," Harvey said. "Americans deserve a Supreme Court they can trust. It's time for Congress to follow the White House's lead and take action to rein in this out-of-touch court."
The Congressional Progressive Caucus seemed ready to take up that challenge.
"We are grateful to President Biden for taking action on this longtime priority of the progressive movement to address the crisis facing our democracy," Reps. Pramila Jayapal (D-Wash.) and Hank Johnson (D-Ga.) said in a statement. "We call on our colleagues in Congress to protect the foundation of our country by passing the Judiciary Act to expand the Supreme Court; Supreme Court Ethics, Transparency, & Recusal Act (SCERT) to require a binding code of ethics and transparency measures for justices; and the TERM Act setting term limits for justices."
Another way Congress could act would be to put forward Rep. Ro Khanna's (D-Calif.) Supreme Court Term Limits and Regular Appointments Act, which journalist John Nichols noted had many things in common with Biden's proposal.
In a thread on social media, Nichols put the movement for court term limits in the context of U.S. history.
"The U.S. has since its founding regularly amended the Constitution to guard against an imperial presidency—including the term limits outlined in the 22nd Amendment and ratified in 1951. Now, President Biden proposes judicial term limits to guard against an imperial Supreme Court," he wrote.
After describing the president's plan, Nichols continued: "President Biden's plan renews the system of checks and balances and also establishes binding ethics reforms for a court that has been embroiled in scandal in recent years—as justices have refused to recuse themselves from cases where they have conflicts of interest."
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Seize the Crown, King Biden! (Then Arrest Trump and Stack the Court)
One of his Majesty's first so-called “official acts" should be to issue an arrest warrant for his insurrectionist predecessor, Donald Trump, for trying to overthrow the U.S. government and the constitution. After that, pack the court with sane justices to restore law and order in the land.
Jul 03, 2024
If Joe Biden wants to recuperate his lagging campaign and demonstrate his presidential strength, he should immediately seize upon the opportunity just presented to him by the six wingnuts on the Supreme Court in their ruling in Trump v. United States (the most appropriately named case this term). He should begin by unilaterally (or unitarily as the theory goes) defining what constitute “official acts” of the President. As the power now vested in him by this decision this should be well within his purview and should be conceived as broadly and deeply as possible.
Of course, one of his first such “official” acts should be to issue an arrest warrant for his insurrectionist predecessor for trying to overthrow the U.S. government and the constitution. Under his new authority, he should be able to waive any trial (or associated delays and appeals) and summarily jail the now convicted felon, forthwith. And, it should be crystal clear that he would be able to deal appropriately with any of the MAGA crowd that attempts to rise up in response to this action. National Guard anyone?
Of course, Biden being Biden, he has already snatched defeat from the jaws of victory by declaring that he will “follow the law” no matter what kinds of powerful openings this ruling provides. You can bet that his predecessor and successor will have no such compunction.
He should then turn his attention to making the government and our “democracy” functional. A first task here would be rectifying the stolen U.S. Supreme Court seats by packing the Court with sane justices who will follow the law instead of their cultish “leader.” I recognize the risk here that such a Court might seek to reign in a newly empowered President, but careful vetting and selection could circumvent these possible inconveniences. He might then turn his attention to the electoral system to make sure that one person/one vote is the rule rather than the too rare exception. Get rid of the Electoral College, outlaw partisan gerrymandering, and expand access to the vote and make voting itself easier. Then it’s on to Congressional reform: eliminate the filibuster, greatly expland the power of Presidential signing statements to shape legislation to his liking, declare Presidential vetoes the final word on legislation he dislikes.
Beyond these good government tasks, it is tantalizing to imagine a slate of non-reversible executive orders covering all those vital national needs that an oppositional Congress and the courts have impeded for years: women’s’ bodily autonomy, universal health care, child tax credits, climate legislation and a real green deal, strengthening pro-labor and environmental protection laws, real immigration reform, curbing wealth and income inequality, reshaping tax policy and spiraling corporate greed, addressing homelessness, and on and on.
Of course, Biden being Biden, he has already snatched defeat from the jaws of victory by declaring that he will “follow the law” no matter what kinds of powerful openings this ruling provides. You can bet that his predecessor and successor will have no such compunction.
And further, Biden being Biden, the whole notion of a vivid and vibrant imagination guiding political or policy action is largely inconceivable. But perhaps some of his close advisors (if they can’t persuade him to drop out which would be eminently preferable) will see this as a chance to hone their puppeteering skills during the his final months in office. Could do the country some good.
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Pivotal Google Antitrust Case Proves Need to Boost Public Access to Trials
"We saw a glimpse of what’s possible when audio access was permitted during the pandemic, and it’s clearly within the court’s power to make this a reality once more."
Oct 29, 2023
Amid the buzz of an always-on news cycle, it’s baffling that the most pivotal trial of the year has gone largely unnoticed.
The antitrust trial against Google’s search engine monopoly has slipped under the radar, and it’s a damning reflection of the state of our public court system. At its core, this trial delves deep into the crisis of economic concentration plaguing our society. The government contends that Google’s monopoly stifles innovation and raises costs for advertisers, ultimately burdening consumers.
But here’s the catch: Gaining access to this trial is an arduous task. In an era of unprecedented connectivity, we find ourselves isolated from proceedings.
Remote audio access, once a pandemic-era lifeline, has vanished. Even for the lucky few who attend in person, a peculiar ritual unfolds when they step into Courtroom 10 on the fourth floor of the federal district court in Washington, D.C.—cellphones are switched off and all electronics are stashed away. It was my privilege to be among the select audience during the first week of the 10-week marathon, and my notepad brims with hastily scribbled notes as testament to this rarified and restricted access.
Imagine a courtroom with no audio access, no cameras, no phones, and limited access to crucial exhibits. The witness list, the cornerstone of any trial, remains hidden until the eleventh hour. Federal District Court Judge Amit Mehta, who is overseeing and will rule on the case, adopted an early policy of deference to Google, granting them near unilateral power to decide what’s sensitive. As a result, in a trial about the existence of monopoly power, we lack data on Google’s market share. The terms of Google’s agreement with Apple, which, according to an unidentified senior Apple employee, enables the titans to “work as if we are one company,” is similarly concealed from public view. Even information about their original agreement from 2007 is deemed commercially sensitive—in 2023.
This case hinges on the power of agreements that establish valuable default status for Google’s lucrative search engine, which has enabled Google to maintain about 90% of the entire market, by some estimates — yet the court prevents the public from knowing how market dynamics change when those defaults are altered. In the midst of public skepticism regarding the Supreme Court’s conflicts of interest, we entrust the courts with safeguarding our fundamental right to public access, yet these glaring gaps undermine both transparency and accountability in our judicial system. The graphs and data we do end up getting to see are the result of intense struggles behind closed doors.
Last week, lawyers for the New York Times stepped into the fray to demand greater media access to trial testimony and exhibits. Judge Mehta was largely unmoved, relegating the question to daily squabbles over whether upcoming testimony should be sealed. To have a voice in those on-the-fly decisions, though, requires media outlets to allocate substantial resources, including making their lawyers present daily for the remainder of the trial. Worse, they’ll be arguing against Google’s sole knowledge of the forthcoming testimony and unilateral ability to argue its sensitivity.
To the extent government agencies should also be advocating for public access to court hearings, those agencies are already massively under-resourced to conduct their core obligations. To wit, the Federal Trade Commission, charged with protecting our entire economy from unfair and abusive monopolies, has lost a third of its appropriated staff—approximately 500 full-time staff—since 1980. By comparison, the Department of Justice is down 352 staff since 1979. In the same period, the economy has expanded six-fold and concentration has become ubiquitous across industries. In 2021, over 3,500 merger transactions were reported to the agencies, an 87% increase over the average number reported over the prior five years. In the FTC’s various litigation against Meta/Facebook, the FTC claims to be outgunned 10 to 1. The dynamic established by the courts renders the best-resourced private monopolies equipped to argue for the secrecy of trials that are public, if in name only.
Greater public access to trial proceedings is possible. During the pandemic, we glimpsed an alternative, as rules were established to allow audio feeds to trials. People hung on every word of Microsoft’s $69 billion acquisition of game studio Activision-Blizzard. Social media was abuzz with debates about key testimony as it unfolded. The sudden expiration of these rules just as the Google trial began was the reason for Judge Mehta’s rejection of a timely request for a live audio feed by American Economic Liberties Project. It was a blow to those who had savored the taste of greater public access to big courtroom drama.
In an altogether separate matter, NBC Universal has filed an application to gain audio-visual access to the upcoming trial of former President Donald Trump, stressing the First Amendment implication of denying such access. Debates over secrecy are more than just a sideshow distraction from the facts and substantive merits of these cases. It’s more than just time-consuming, costly and draining for both the public and the court itself. It invokes constitutional issues that go to the heart of our judicial system.
The path forward is clear and achievable. The Judicial Conference, a body of federal judges overseeing the operation of our federal courts, must adapt to the way the modern world accesses information and revise its rules to permit the broadcast of trials. They have studied the effect of cameras in the courtroom since at least 1988, with numerous committees recommending their introduction for both civil and criminal proceedings. The technology for enabling that access has undergone paradigm shifts in that time. We saw a glimpse of what’s possible when audio access was permitted during the pandemic, and it’s clearly within the court’s power to make this a reality once more.
We should not burden the public with the fight for access. The court must lead the way, by embracing transparency in the 21st century.
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