Biden prepping to endorse sweeping changes to Supreme Court

reading is difficult

 

I would suggest it's your communication style vs my reading comprehension.

If I am not interpreting what you are saying correctly. you are free to explain or you can complain.

 

this is nonsensical

also nonsensical. straw man.

whose retirement requirements? if you mean the Court, yes, unconstitutional. Article III.

the only ENFORCEMENT power

those are OTHER powers. we are talking about the authority of the Congress to enforce DISCIPLINE members of the Supreme Court of the United States. Not set the budget of the judiciary etc etc etc

 

https://en.wikipedia.org/wiki/Article_Three_of_the_United_States_Constitution#Clause_2:_Tenure

 

Bribes require a quid pro quo. As Thomas hasn't changed his position for 30 years, that is a tough evidentiary hill to climb. It is more that rich people like originalism and justices that support it, so they enjoy giving them gifts. If he were for sale, it is really dumb of the abortion lobby or the unions or whoever else is on the losing end of his decisions not to give him more than $4 million dollars.

BTW, you are also free to say, "Hey thanks, I didn't know that about gift taxes."

 

How is asking you a question a straw man? I am trying to clarify your position but the response I get is, nonsensical! Or Strawman!

So you are saying that existing retirement requirements that EXIST CURRENTLY are unconstitutional? Is that correct?

 

"Thomas wrote a landmark Supreme Court opinion upholding the doctrine in 2005, but began questioning it a decade later, before eventually renouncing his past opinion in 2020 and claiming that the doctrine itself might be unconstitutional. Now, Thomas could help overturn the doctrine in a new case the high court just agreed to hear next term.

Groups within the conservative legal movement funded by Leonard Leo’s dark money network and affiliated with Thomas’s billionaire benefactor Harlan Crow have organized a concerted effort in recent years to overturn Chevron. That campaign unfolded as they delivered gifts and cash to Thomas and his family in the lead-up to his shift on the doctrine.

In 2010, Crow bankrolled a dark money group led by Thomas’s wife, Virginia or “Ginni,” that paid her $120,000. Leo was on the group’s board of directors. In 2012, Leo’s dark money network steered undisclosed consulting payments to Thomas’s wife. The Leo network has funded Republican politicians and several nonprofits pressing the Supreme Court to overturn the Chevron doctrine next term.

Crow, meanwhile, provided luxury travel to the Thomas family for two decades. The justice did not report those trips, and similarly failed to disclose that Crow bought his mother’s house, and allowed her to keep living there rent free, and paid his grandnephew’s boarding school tuition."

https://jacobin.com/2023/05/clarence-thomas-chevron-regulatory-doctrine-conservatives-dark-money

 

Reciprocity. It’s human nature, and the powerful use it to gain more power.

 

Thomas wrote one opinion in support of Chevron deference and spent the rest of his tenure on the court attacking it after the justice closest to him in judicial philosophy disagreed with him on it, changing to the more originalist argument that typified his judicial career. Scalia (also an originalist/textualist) flip flopped as well, on his position on the Interstate Commerce Clause in Gonzalez v. Raich. Overall, his judicial philosophy has remained unchanged. The things Joe Biden was so strident in attacking him for before he was even confirmed (and before he received any of these gifts) are the same things he is being attacked for now.

 

A police officer gets gifted a sht ton of money by a rich billionaire bc they are "friends". U must b a total dumba$$ If u don't believe its corruption.

Apply that to the Supreme Court justices and it's the same sht. Os trig trying to use semantics and barrage folks with texts to explain why what Clarence Thomas has done was acceptable.

Only reason his a$$ is still there is bc the Republicans would look the other way if it means staying in power

Oh accepting money as gifts for 20 years and hiding it is fine but Clarence Thomas has always refused bribes. U must b a total dumbass if u believe that sht.

 

any question that begins with the words "so you are saying" is usually a pretty good sign that a straw man is being prepared to launch

"So you are saying that existing retirement requirements that EXIST CURRENTLY are unconstitutional?" I have no idea what YOU are talking about. We are talking about the forced retirement of Supreme Court justices. By the Constitution, they have lifetime appointments. That is what I am saying. That is what the Constitution is saying. I do not know what you are saying.

https://constitution.congress.gov/constitution/article-3/

Constitution of the United States
Article III
Section 1

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.
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This is an interesting stat:

"Supreme Court justices served an average of about 17 years from the founding until 1970, said Gabe Roth, executive director of the group Fix the Court. Since 1970, the average has been about 28 years."

 

Kagan called for enforcement of the recently adopted SCOTUS ethics by other judges appointed by the chief judge.

https://apnews.com/article/supreme-court-elena-kagan-ethics-code-0de5fc0fb31eaab57202cf96b4e9c3e7
Updated 7:15 PM CDT, July 25, 2024

In her first public remarks since the nation’s highest court wrapped up its term earlier this month, Kagan said she wouldn’t have signed onto the new rules if she didn’t believe they were good. But having good rules is not enough, she said.

“The thing that can be criticized is, you know, rules usually have enforcement mechanisms attached to them, and this one — this set of rules — does not,” Kagan said at an annual judicial conference held by the 9th Circuit. More than 150 judges, attorneys, court personnel and others attended.

It would be difficult to figure out who should enforce the ethics code, though it should probably be other judges, the liberal justice said, adding that another difficult question is what should happen if the rules are broken. Kagan proposed that Chief Justice John Roberts could appoint a committee of respected judges to enforce the rules.

...

Kagan, who was nominated to the Supreme Court in 2010 by then-President Barack Obama, said Thursday that having a way to enforce the ethics code would also protect justices if they are wrongly accused of misconduct.

“Both in terms of enforcing the rules against people who have violated them but also in protecting people who haven’t violated them — I think a system like that would make sense,” she said.

 

I don't know what you guys are arguing about, but term limits for the SCOTUS appear to be unconstitutional and might require a constitutional amendment. Again, this is NOT a new idea. The 18-year term limit was proposed at least a decade ago. Judges themselves are in favor of it (last poll I saw was 60% in support). How you get it done is a different matter, but it's a good idea that most people (70-80%+), including judges, support.

 

No, that's not true - you can say "so you are saying" as a statement which is a strawman, or as a question of clarification. I am doing the later.

I am not talking about forced retirement but retirement requirements. Congress sets those requirements (10 years of service + minimum age of 70). That applies to Justices. If a Supreme Court justice doesn't meet those requirements - they can't get their pension. My point is Congress can regulate them.

Good behavior can include mental capacity and congress can require justices to get mental wellness checks and abide by a code of ethics to ensure good behavior. Nothing in the constitution says it can't do that.

 

Just skimming through the last few posts. I agree that any major changes to the court are likely not going to happen both politically and because of the Constitutional structure. Term limits will likely require an Amendment.

Ethics can be enforced by the court itself or Congress can use the threat of impeachment to get the court to act. The problem is the court doesn’t show much inclination itself to police itself and politically Congress has a hard time carrying out impeachment.

Things like accepting gifts from those with business before the court is unethical and that such rules apply to lower courts but not the Supreme Court shows there is a major disconnect. This argument that it’s not a bribe because the judge would rule that way anyway seems extremely strained when a lower court judge or someone in any other position of interpreting rules would be considered in violation of ethical standards for doing so.

For example if a code official approves a developer to build a huge new project. Accepts a gift of a vacation to Tahiti from the developer. That official would face some serious ethical charges even if the development met all codes already. At the same time if a lower court judge ruled in favor of the plaintiff couldn’t accept a trip to Tahiti from the plaintiff even if the ruling was in line with their judicial philosophy.

 

What would you guys say if let’s say Judge Kagen hired a thug in secret to assault or kill Donald Trump. The department of justice finds evidence and indicts Justice Kagen.

Then through the lower courts Kagen is able to appeal all the way up to the Supreme Court claiming judicial immunity in some round about way. And the Supreme Court rules that this immunity does exist for Kagen and they toss out her conviction or indictment if it hasn’t reached trial yet.

All the while a Democratic Senate refuses to have the will to impeach.

The arguments you guys on the right are making are all about these bribery situations as a way to diminish crimes and wave away corruption as not that big of a deal. However a crime is a crime. And if a justice can commit bribery with impunity there’s no reason they cannot commit other crimes too… and there’s no reason to believe that only Republicans will ever be the ones committing crimes. Later in your life you could regret excusing and allowing ALL Supreme Court justices the ability to be kings with zero accountability other than their peers on the high court.

Love or hate Bidens proposal the fact is something has to be done. The threat of impeachment obviously is not enough.

 

https://www.wsj.com/articles/judici...den-court-8d85cc06?mod=hp_opin_pos_2#cxrecs_s

Supreme Court Term Limits Are a Waste of Wisdom
Justices Brandeis, Black, Harlan and Holmes did some of their best work in later years.
By Nathan Lewin
July 31, 2024 at 12:32 pm ET

It’s easy to make a legalistic case against President Biden’s proposal to impose 18-year term limits on Supreme Court justices. History, however, can be the most persuasive teacher. If Mr. Biden’s folly had always been the law of the land, we wouldn’t have some of our wisest jurists’ most compelling judgments.

The first John Marshall Harlan was in his 19th year as a justice in 1896 when he dissented from the court’s blunder in Plessy v. Ferguson, which approved separate railway accommodations “for the white and colored races.” In a lone dissent, he declared that “our Constitution is color-blind.”

Oliver Wendell Holmes took his Supreme Court seat in 1902. Twenty-one years later he dissented in Adkins v. Children’s Hospital, a decision that nullified a federal law prescribing minimum wages for women employed in the District of Columbia.

Hugo Black completed his 18th year on the high court in 1955. Sixteen years later, he issued a passionate defense of a free press in New York Times Co. v. U.S. (1971), the Pentagon Papers case. The Founding Fathers, he wrote, intended that the press “serve the governed, not the governors.”

Louis Brandeis may have written his most memorable defenses of personal liberty in his early years on the bench, alongside Holmes. Yet he is sealed in every lawyer’s mind for his majority opinion in Erie Railroad v. Tompkins (1938), decided in his 22nd year as a justice, which reversed an almost century-old rule that had governed litigation in federal courts.

One genius of our Constitution is its recognition of varying terms for federal office-holders. Articles I and II prescribe that representatives be elected for two years, presidents for four and senators for six. Article III specifies that all officials exercising the federal “judicial power”—“both of the supreme and inferior courts”—retain their authority “during good behaviour.” That is, for life.

Alexander Hamilton wrote in Federalist No. 78 that the judiciary was “the weakest of the three departments.” He also warned that “periodical appointments” of federal judges would “be fatal to their necessary independence,” and that judges shouldn’t have “too great a disposition to consult popularity.” Experience on the bench generates wisdom that term limits would swiftly eradicate.

Mr. Lewin is a Washington lawyer with a Supreme Court practice.

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https://thedispatch.com/article/what-ever-happened-to-judicial-independence/

Did the President Forget About Judicial Independence?
Biden’s SCOTUS reform proposal puts activist demands over constitutional norms.
By Keith E. Whittington
Published July 31, 2024

On February 5, 1937, not long after his second inauguration, President Franklin Delano Roosevelt sent Congress a special message outlining a plan to reform the judicial branch. He claimed to merely be trying to “reorganize” the modern judiciary, to help elderly justices manage their workload and “maintain the effective functioning of the Federal judiciary.” But FDR’s court reforms were not really about administrative efficiency—and the veil was soon ripped away.

Chief Justice Charles Evans Hughes reported to Congress that the court was entirely on top of its caseload and needed no additional assistance. Critics denounced the president’s plan as “court-packing,” an attempt to fill the bench with compliant yes men. In response, Roosevelt delivered a fireside chat a month later with a new framing: A stubborn majority of the court had invited “catastrophe” by striking down swaths of the New Deal during his first term, and the people were now demanding that the judicial branch “pull in unison with the other two.” It was time to “infuse new blood” into the court.

Although FDR’s court-packing plan was for a long time regarded as not just a strategic misstep but a gross violation of constitutional norms, the left today has found a renewed respect for the idea. As the median justice has shifted from Sandra Day O’Connor and Anthony Kennedy to John Roberts and Brett Kavanaugh, progressive calls to “fix” or “expand” the court grew. Democratic presidential hopefuls in 2020—including then-primary candidate Kamala Harris—fell in line with these demands. And earlier this week, President Joe Biden formally endorsed court reform (though not court expansion). Harris issued a statement of her own, describing the proposal as necessary to “restore confidence” in a court that had issued “decision after decision overturning long-standing precedent.”

Biden’s Supreme Court proposal has three parts. First is a constitutional amendment to strip presidents of any immunity from criminal prosecution. Although no specific text is available, such a proposed amendment has little chance of passage in the current political environment. For those who think the issues raised in Trump v. United States were easy, drafting an amendment likely seems easy too. On the contrary, an amendment like this one could easily create more problems than it solves. Handing Congress carte blanche authority to criminalize presidential conduct is a recipe for gutting the independence of the presidency.

Second is the imposition of 18-year terms on Supreme Court justiceswith vacancies to be filled every two years. Although legal experts and court watchers have discussed term limits for some time, these proposals often vary considerably. The most fundamental question facing them is whether they can be accomplished by statute or whether they require a constitutional amendment. Biden’s own Presidential Commission on the Supreme Court (which I was a part of) was divided on this question.

A group of Democratic senators led by Sheldon Whitehouse introduced arguably the most prominent version of a judicial term-limits bill, closely following a similar plan to impose term limits via a statute. The bill would allow presidents to appoint a new justice every two years. Only the nine most recently appointed justices would sit for the court’s appellate jurisdiction cases, which compose nearly the entirety of the docket. The other justices would retain their offices, but they would no longer hear the most important cases. Other versions would consider justices as “deemed retired” upon serving 18 years.

Unsurprisingly, this proposal would radically change our understanding of “life tenure.” Because the Constitution specifies that judges “shall hold their Offices during good Behaviour,” a statutory term limit would try to work by redefining what it means to hold “office.” The court has held that Congress can revise a sitting judge’s duties compared to other judges holding the same constitutional office. In the 1934 case Booth v. United States, it held that “by retiring pursuant to the statute a judge does not relinquish his office” and “does not surrender his commission, but continues to act under it” when a judge assumes senior status. A justice may retire, for example, from “regular active service” on the Supreme Court but continue to perform some duties and collect a salary under the same commission of office.

As a matter of law, it is unclear that sitting judges could be forced to take such a senior status, so long as they continue to meet their constitutional obligation of good behavior. That said, according to Booth, Congress “may lighten judicial duties, though it is without power to abolish the office.” Proponents of these changes argue that if Congress forces a justice into senior status, it has merely “lightened” his duties, consistent with Booth.

But if Congress requires a justice to lighten his duties and hear fewer or different cases, has it effectively abolished the office and replaced it with a new one? If judges may be involuntarily removed from their current duties and given different and lesser ones, have they effectively been relieved of their offices? Could Congress by statute banish Clarence Thomas to Alaska and allow him to perform only the work of a district court judge without having “abolished” his office? The court has pointed out before that “the Constitution deals with substance, not shadows.” Stripping justices of their ability to hear meaningful cases would likely be seen as a breach of judicial independence by the sitting justices.

As a matter of constitutional norms, a statutory term of service under current circumstances would in fact be a serious challenge to judicial independence. The current White House is not shying away from saying that it wants to shuffle justices off the court because it is unhappy with the substance of its decisions. Perhaps there could be a neutral rationale for setting a mandatory retirement age to avoid the problem of infirm judges—but there is nothing politically neutral about current proposals. They recall how a leader of the Jeffersonian senators once told John Quincy Adams that Federalist judges needed to be impeached because, “we want your offices, for the purposes of giving them to men who will fill them better.”

But this rationale for forcing justices into retirement raises clear concerns about how effectively the court could continue to serve as a check on Congress. If Congress can by statute pull individual justices off cases because it disagrees with the substance of their rulings, then the security of life tenure for preserving the constitutional checks and balances would become more shadow than substance.
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more

 

conclusion

The third of Biden’s court proposals is the adoption of “binding” ethics rules for the Supreme Court. Democrats in Congress have introduced many different ethics reform bills, but the White House appears to want a bill that would require disclosure of gifts, exclusion from “public political activity,” and recusal for spousal conflicts of interest. There are sticky problems to be resolved over what constitutes prohibited “political activity” or a conflict of interest. Restrictions on gifts can always be detailed, though there are loopholes that can be exploited or used to cast aspersions on politically disfavored judges. Activities are much harder to pin down and more likely to be subjective in their perception. A process for investigating and resolving such complaints might put controversies to bed and help “restore confidence” in the courts. More likely, though, it would become fodder for generating more controversies and distrust.

But there’s a larger problem with the idea of “binding” and “enforceable” ethics reform for the court. Can Congress set a code of conduct for an independent branch of government? And even if it can, how can such a code of conduct be enforced in a manner consistent with judicial independence? Congressional authority to make laws that are necessary and proper to execute the powers of the government is broad, but it is constrained by principles of separation of powers and the authority of the coordinate branches to act freely to perform their own constitutional duties as they understand them.

Imagine that the substance of a judicial code of conduct was uncontroversial and could be designed such that it would not credibly impinge on judicial duties. That still leaves the question of enforcement. Principles of judicial independence limit the options on what can be done to a judge who violates any proposed code of conduct. Sitting judges can be prosecuted for violating the criminal law, though there are undoubtedly some limits on what offenses the legislature could criminalize. Judges can be impeached for high crimes and misdemeanors, though a code of conduct adds nothing to the existing authority of Congress in that regard.

Moreover, justices are currently expected to recuse themselves from individual cases when they have a conflict of interest, and a likely path for any “enforceable” code of conduct is to take such decisions out of the hands of individual justices. But then where would they go? In the hands of the majority of the justices? In the hands of a panel of lower-court judges? Somewhere else?

Disqualifying justices from cases raises unique problems given the fixed bench. Forcing a justice off a case could easily alter its outcome, and thus the incentives for trying to take such actions are large and the bar for recusal has traditionally been high. The court itself has not traditionally treated recusal decisions as within the collective purview of the institution, but rather as matters of individual discretion for each justice. It’s not obvious that a process for disqualifying justices would be consistent with judicial independence.

The big stick of enforcement is the impeachment power. There is little doubt that Congress can exercise its own impeachment authority to enforce a code of conduct on the justices. If Congress decides that vacationing with a rich private citizen or speaking at a Federalist Society conference is an impeachable offense, then it can act accordingly. Convincing a supermajority of senators to convict a Supreme Court justice is unlikely to be easy, except in the most obvious cases of abusive behavior.

But how must Congress pursue an impeachment inquiry? In particular, can it choose to create an office of civil servants embedded in the Supreme Court to investigate potential impeachable offenses and report them to the House for further action? The House itself has the “sole Power of Impeachment.” It has enjoyed letting prosecutors and special counsels do the heavy lifting in many recent impeachment cases, but it is not clear that a statutory office of Supreme Court ethics is a constitutionally necessary and proper means for implementing the impeachment power. If Congress wants to impeach a justice, it probably needs to do the dirty work itself.

The White House has, for the moment, stopped short of calling for court-packing. But the “reforms” it has endorsed puts the Roberts Court in the congressional crosshairs. It gives administrative support to progressive activists who want to use legislative tools to alter the composition of the court and change constitutional law. Such reforms are likely to be viewed as ineffective half-measures if they do not accomplish their ultimate goal of shifting the court’s balance of power. At the same time, if their constitutional logic is accepted and normalized, then there is no reason for Congress to refrain from taking additional steps to get what it wants from the court.

Keith E. Whittington

Keith E. Whittington is David Boies Professor of Law and Director of the Center for the Study of Free Speech and Academic Freedom at Yale Law School and author of The Political Foundations of Judicial Supremacy. He was a member of the Presidential Commission on the Supreme Court of the United States.

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