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Episode 157: The Case for Court Reform

39m 35s

Episode 157: The Case for Court Reform

The podcast episode featured Tonga Leslie and Christopher King discussing Supreme Court reform, highlighting President Biden's support for major reforms. The need for a binding ethics code for Supreme Court justices was emphasized, along with the lack of enforcement mechanisms. Term limits were proposed to address issues of power concentration and strategic retirements among justices. Constitutional scholars suggest implementing term limits through statutes that transition justices to senior status after a set term. This approach aims to maintain judicial roles while ensuring turnover and responsiveness in Supreme Court appointments. The discussion underscored the importance of these reforms in maintaining the integrity and effectiveness of the Supreme Court.

Transcription

6876 Words, 38694 Characters

Welcome to Broken Law, brought to you by the American Constitution Society, a 501(c)(3) non-profit, non-partisan organization. I'm Tonga Leslie, Director of Policy and Program for Racial Justice, and on today's episode we're going to be discussing Supreme Court Reform. This summer, after another disastrous term which included rulings that dramatically expanded presidential immunity and cut down the power of federal agencies, President Biden became the first president since FDR to support major reforms in the Supreme Court. To help us make sense of all these reforms, we're joined by Christopher King, a leading advocate for democracy and courts' defense, justice, and equality. He's an ACS board member, the former co-founder and Chief Counsel of Demand Justice, a grassroots advocacy organization that's been building progressive momentum on the courts. He also served in the Obama White House, where he helped select, vet, and confirm more than 220 of the president's judicial nominees, including confirmations of Supreme Court justices Sotomayor and Kagan. So we are, of course, extremely thrilled and pleased to have you joining us. How you doing, Chris? I'm doing well. Thanks so much for having me. All right. Well, I, of course, from your bio, folks should know you've been in this fight for a long time to bring SCO's reform mainstream. And I just want to, before we jump into the sums of them, how did we get to this moment where Biden is actually announcing his support for such substantial reforms? Yeah. I think that that's a great question because it's really remarkable how far we've come, how quickly we've come, right? Sort of, depending on how you look at it, those of us who have been pushing for court reform feel like the progress is too slow still and we still have a long way to go. But even like five years ago, polling would show that we had a long way to go to convince not just the nation, but even Democrats that the Supreme Court is posing a threat to our democracy and to progress. Polls would show that a majority of Democrats supported the Supreme Court. And so part of the challenge at the time was to explain how the Supreme Court, I mean, this is already, this was a Supreme Court that had brought us Citizens United undermining campaign finance reform, Shelby County undermining voting rights, Heller sort of upending the way we think about our ability to control gun violence. All of these bad decisions sort of already been recent and in the conversation, in the debate and still even Democrats supported the Supreme Court. So part of the challenge was how do you explain the problem and the issue with the court? And how do you start to move that conversation? And I think that about this time, four years ago, President Biden, who is the embodiment of mainstream Democratic policies and priorities, he as a presidential candidate said, "Well, you know what? The Supreme Court is posing some existential challenges and we need to study it. We need to study and determine whether or not it is a problem, sort of is in the math math of Justice Ginsburg passing away, Republicans confirming Justice Barrett, even as 60 million Americans already voted. And President Biden said, "Look, this is going to be a problem. We have to study it." And so I think we had made some significant progress to that point. But then his response actually sort of illuminated some of the challenges to come. He said, "We need to have a commission and we need to have a report to study." And so I think really the embodiment of the problem here is that he said, "We need to have a commission. I don't want the commission to make any recommendations." So he's sort of willing to say, "There's a problem we need to study. We'll put solutions off for another day." Since then, obviously the Supreme Court overturning Roe versus Wade, making it even harder to address climate change and gun violence prevention and even any regulatory action, finding sort of vast amounts of immunity and presidential deference to President Trump, sort of on and on, the court has made these decisions where President Biden, to your point, Tonga, is the first sitting president in generations. And as a candidate for reelection said, "I'm going to tell the American people what we need to do and we need to reform the Supreme Court." And so we have gone from thinking, is there a problem to, "Yes, there's a problem and we need to fix it and here's some ideas to do so." And I think that the fact that these were the policies that even after he decided not to run for reelection, it's the first major policy proposal he made. He's continuing to draw on this fight. Vice President Harris and Governor Walz have continued to adopt support for term limits and ethics reform really shows how not just politically but substantively and in the conversation we have come, and it really also reflects the mood of the country, whereas today, poll after poll shows that more Americans overall disapprove of the court than approve sort of light years from where we were when a majority of Democrats even supported it. And I want to also, you mentioned the commission and I know that you testified before that commission. I want to sort of, if you can explain the tea leaves within sort of the legal sphere and there are so many scholars on that commission, where's the idea of Supreme Court sat with that? Have you seen a shift sort of within the walls as well of how people are thinking about that? I definitely think that we have seen a shift in how progressives in particular are willing to look at the court. I think that we are in many ways defined by our belief that government has the power to do good and to help people. And so we support the institutions, we support the institution of government. This is sort of the approach embodied by President Biden, who has participated in more Supreme Court confirmations than certainly anybody alive today, understanding and supporting the institution of the court. But the institution of this court is not the court that we wish it were, certainly not the court that it has been in the past. This is not the court that sort of brought us Brown versus Board of Education. This or Roe versus Wade, this is a court that is rolling back rights and rolling back freedoms. And I think that the consequences of this court are becoming so stark that even those of us who sort of have been institutionalists, and I consider myself among them having served in the United States Senate staff for seven years, in the White House for seven years, very much believe in the power and importance of government, have come to the conclusion that this court has to be reformed in order to preserve the institution and we can't just support the institution as an idea in and of itself. Well, on that note, let's jump in with the first of the reforms. He talks about a binding ethics code. And if you could lay out for people currently, first of all, what is the state of ethics with the Supreme Court and how does that relate to the other courts that we have in the country? So it is, I think, surprising to most people who don't think about or know this. The only court in the United States that is not subject to a binding code of ethics is the highest court in the land, the United States Supreme Court. It's crazy to think that the people who are in charge of the most important decisions in our judiciary are not held, they should be, you think they would be held to higher standards and instead they're held to no standards at all. And so it is very advisory whether or not the justices adhere to any ethics and there's no enforcement mechanism to any complaints that may be raised. And so I think one of the more jarring examples of the problem is that Brett Kavanaugh, when he was up for nomination, 82 ethics complaints were filed against him. And if he remained a judge on the DC Circuit, those ethics complaints would have been considered and examined. But because he was confirmed to the Supreme Court, suddenly there was no mechanism to consider them and the ethics complaints all had to be dismissed. And so that is the kind of upside down world that we're currently living in when it comes to ethics and what we expect from our Supreme Court justices. And so what kinds of ethics would be imposed and how would that actually be enforced through a binding code? So there are a lot of different approaches that you can take, but principally what the idea is is, again, like every other federal judge is currently subjected to a code of conduct and an ethics code that is binding. And so the idea simply is to make it binding on the Supreme Court. And some ideas include having other judges sort of be able to do the investigation and enforcement. The Supreme Court judge is something that I believe Justice Jackson has talked about. And so there is this idea that there are different ways of implementing it. You could even have, if Chief Justice Roberts wanted to find a way to make the code enforceable, he probably could under existing authority. But right now he's too willing to defer to the most extreme, and I think arguably the most unethical of the justices on the court, and say, you know what, as Supreme Court justices, we are essentially above the law. We're above reproach, we're above ethics. And so none of these ideas should be on the table. And I think that that has been the position of justices Alito and Thomas, that there's no possible way that ethics can or should be imposed on Supreme Court justices. Speaking of justices Alito and Thomas, there have been a lot about, you know, potential conflicts of interest, one with Alito related to the flag flown outside of his family home and how that relates to his recusal or not, and Trump-related cases, and Justice Thomas has faced similar calls for recusal. How would this, I guess, practically play out in terms of outcomes and what cases judges are hearing? You know, one of the principles when you bring a case before a judge is that the judge should be impartial, that hearsay should not have a predetermined view or stake in the case. And yet here you have places where the justices seem to have already decided what side they're going to be on before the case is even heard, or they may have a financial interest in the case, and they're still deciding these cases. You look, it's like every single week, there's a new ethics-related scandal to a Supreme Court justice, and it will almost be starting to become immune to it because there have been so many. And I think it's important to take a step back and think, like, if somebody is taking a Supreme Court justice on private jet planes and on super yacht vacations and helping pay for their RV and their sort of family or extended family members' education, like, if they're providing the justice with so much financial benefit, and then they have cases where they may not literally be a party to the case, but have a substantial interest in the outcome, can we actually be sure that the justice is going to rule based on the facts and the law and not on their personal interest? And so there has to be a mechanism in place where somebody can say, "I think there's a conflict here. I think that you might be predisposed to rule in this party's favor based on your own personal benefit, based on sort of your spouse's financial or otherwise benefit, and sort of have a way to ear those concerns and to push for recusal and have that be determined by some impartial party as to whether or not you should recuse rather than just leaving it up to the justice to sort of say, "No, no, don't worry about it. I promise I'll be fair." And when you say impartial, it sounds like a leading mechanism for that might be having other judges be the ones to weigh in. Right. And that is the way that the system currently works or can work if there are requests for recusal that come through in lower courts, but certainly not available at the Supreme Court. I mean, it definitely seems to make sense in terms of the political calculus on this one, but where are the odds of this getting implemented and how is it looking on public support on what it would need to actually become law? I mean, I think there's no question and I really no surprise that support for binding code of ethics for Supreme Court justices is like polls at 80%, right? It's almost hard to object to ethics for Supreme Court justices, although some people do object. So I think like politically, the will of the people is there. I think the challenge right now is that in a United States Senate where you currently need 60 votes to break any filibuster, you're seeing Republicans line up in mass to oppose Supreme Court ethics. And so right now, as long as the filibuster is in place and as long as Republicans choose to side with the wealthy and the powerful and Supreme Court justices who are facing mounting ethical attacks and sort of brushing them off, it may be hard to enact it, but I do think that that you're seeing hearings in the Senate Judiciary Committee, you're seeing investigations by not only Judiciary, but also the Senate Finance Committee, you've seen the Senate Judiciary Committee move legislation, report legislation out of the committee that would impose a binding code of ethics. Progress is happening, but the real question will be whether or not the Senate can break that filibuster or whether or not there may be a time in which there should be an exception to the filibuster in order to impose ethics on the Supreme Court. You're listening to Broken Law, brought to you by the American Constitution Society. If you're enjoying Broken Law, consider becoming a member of ACS today. You do not need to be a lawyer to be a member. As we discuss so often on this podcast, our laws and legal systems impact all of us. By supporting ACS, you support Broken Law, our work to diversify the federal bench, and our advocacy for Supreme Court reform. You also become a member of our nationwide network. Learn more about ACS by visiting our website at acslaw.org. And now, back to the conversation. Let's move to the term limit, because that was the other big headline, and it seems a little bit needs more explaining on how this will actually be put in. And first off, what are we solving for with term limits? What's the core issue that's brought term limits to the core? That is a great question, because I think the term limits can solve for a lot of different things. I think that one of the challenges we have is that Supreme Court justices can serve for as long as they'd like, right? And so they make strategic retirements in which they may retire at a time when they're more likely to be replaced by a justice with the same ideology of them, sort of regardless of how the country may have changed. And so you have the situation in which 15 of the last 19 justices have been appointed by a Republican president, even as Democrats have not only won the White House, but won the majority of the popular vote, or more votes in the popular vote, seven out of the last eight elections. And so we have this situation in which the court is not keeping up with the country in terms of how the country and the electorate sort of from a small D Democratic perspective is moving. And so I think that that is one of the issues that the term limits solves for. The other is just sort of the fact that when you've been on the court for 30 years, that's a lot of power for one person to have. And I think one of the things that we're trying to do is trying to move to a system in which Supreme Court justices serve for a set period of time and then rotate off so that there's more balance and sort of one of the challenges that I think the term limits are trying to account for is that each individual justice right now in our system just has so much power that it's starting to be corrosive for democracy. Now, some of the things that you mentioned to be clear, are these changes from how the Supreme Court has been, because we have, of course, had traditionally had them half-life tenure and resigned. So have they shifted or changed in recent years? Well, certainly justices are serving for far longer than they ever have before. And one of the reasons for that is so that justices can strategically time their retirement to match so that their ideology continues on. And I think that those are two sort of things that are different from the court 30, 40, 50 years ago in terms of how people are using, seeing the court and using the court to advance a particular ideology rather than being an institution that sort of promotes justice and equality and sort of a regular turnover that you might have seen a few generations back. Now, I think there's also, especially as ACS, the elephant in the room of the Constitution. So under the Constitution, we have an Article III that justices served during good behavior. And for a long time, people have understood that to mean, well, they have life tenure, you can't, there's no way to basically make them move on unless they want to. So what's your reading on that and how does that intersect with term limits? Well, the upside is that you don't have to rely on my reading of that. I was reading of law professors, constitutional law professors, both conservative and progressive, who say there was a way to change the term limits for Supreme Court justices through a statute that would be constitutional. And a couple of different ways of doing it in legislation is one, if you have an 18-year term limit after your 18-year term is over, you move to senior status, which is a status that does not hear every case. And so there's still a Supreme Court justice, you still have the title and the salary, which you just would not be hearing cases as you would as an active judge. There's also a version of this legislation that says that only judges in the justices in their first 18 years would hear the vast majority of cases. And so it goes through it from a jurisdictional perspective. And those are two different approaches that, again, constitutional scholars believe would be ways in which justices are still justices, so you're not kicking them off the court in a way that might conflict with the Constitution, but they're just serving in a different capacity. And that's how you address the life tenure that the Constitution provides. And so that for folks who might not know, senior status, how has that worked and how has that looked like in our judicial system? So right now, lower court judges can, once they have served for a long enough time and they reach a certain age, they can take senior status, so they're not considered quote-unquote active judges. They may not hear as many cases, they may sort of have a limited docket, but they still retain the title, the role, the responsibilities, and the salary of being a federal judge in that position. They have not sort of fully retired. And so it's moved to a different status that allows them to hear different kinds of cases or a different amount of cases, but their status as judges sort of still remains intact. So practically, and you mentioned 18 years, which seems to be like sort of the leading term of our proposal, what would the system look like if we were to put in these 18-year term limits? So one of the things that the Supreme Court, the way that this legislation would work is that the Supreme Court justice would be appointed on the first year and third year of every president's administration. And so again, this gets away from the idea of strategic retirements and allows the court to be more responsive to the American people. And so each president would have the opportunity to appoint a justice in her or his first year and third year of each term. So you don't have a situation in which President Trump has three justices appointed, but President Biden only has one. And you have the uniformity to allow for the court to have this process. So then if you do that, nine justices appointed every two years allows for the court to turn over after a period of 18 years. Okay, that sounds appealing. And then we already have the justices in place now who presumably were not appointed subject to term limits. So what does the transition look like to get from, I guess, here to there? So you know, one of the leading proposals in the, in actually, I think both in the House and in the Senate would say that once a new justice is appointed, the most senior justice would rotate off so that you sort of create again, especially for those who believe that the number nine is a magical number for the Supreme Court, you'll always have a court of nine justices and that you sort of would rotate them on and off so that the next president in 2025 would appoint a new Supreme Court justice and the most senior justice at this point, Justice Thomas would either move into senior status or would move into a different status in which they would not be hearing cases of appellate jurisdiction, depending on sort of the way in the approach in which the statute takes. So if we immediately rotated senior justice off, who presumably had met the 18 year limit already, that would immediately put us on that cadence. Right. And the most important thing is to start the system set up so that you can and would replace a justice every two years. And so 2025, the first justice goes, and then that justice is set for an 18 year term. 2027, another justice is set, would serve for an 18 year term, and then you sort of get away from the fact that right now you have a bunch of justices sort of bunched together in their term and how long they've been serving for. And then a big gap between Justice Alito and Justice Sotomayor, you sort of would be able to sort of rootenize how often justices are appointed and then provide some uniformity to the system as well as to the appointment process. So one of the reasons that folks have named is that this would sort of lower the temperature on Supreme Court appointments. Do you think that gets us sort of all the way there, or is there still possibility for you know, gamesmanship within the system? I think that the proposed legislation tries to get at the sort of political gamesmanship, I might say cheating, that we saw in 2016 when Justice Scalia passed away and President Obama's nomination of now attorney general, Garland, Mr. Garland didn't receive even a hearing, more or less consideration of his nomination. And so you could envision a world in which you have a president of one party and the Senate of the opposing party and the Senate of the opposing party says, oh, I don't care that it's the first year of your presidency, I'm not going to allow you to fill this vacancy. And the legislation tries to provide a way in which there's a specific timetable in which nominations would be considered and the possibility for subsequent nominations. And I think that the hope is that at some point there would be compromise and an ability where even a president of the opposing party could have their nominee confirmed. But that is sort of one of the challenges of the system that we've seen, given how Senate Republicans sort of took the unprecedented step of not even allowing a hearing or a vote on a Supreme Court nominee, sort of, that's the new world I think where we live in and that we may have to prepare for sort of it coming back and how we might address that even in a situation with term limits. And what to, these are, of course, the regularized vacancies, but people do, you know, as in the case of Justice Scalia, sometimes they'll pass away surprisingly or may need to resign for health reasons. How does that fit into this sort of regularized system? So there are a couple different possible approaches. One is that one of the judges who has been on the court and moved into senior status or moved into a position in which they're not one of the justices regularly here in cases would then be randomly selected to come back and fill that seat, that unexpected vacancy until justice could be replaced in sort of in the regular time. There's also a possibility in which maybe somebody could be appointed sort of in the off year. So like the second year of presidency, if there was an unexpected vacancy. But then the president would not have the opportunity to replace another justice in the third year. And so you still would end up on the sort of regular cadence of first and third years, sort of just depending on how the timing or the mechanism envisioned by the legislation works out. Right. So in terms of the practicalities, number one, how's this looking in terms of public buy-in, in terms of the likelihood of it actually becoming law? So this is actually the same as ethics reform in that term limits for Supreme Court justices polls at 70 or 80% support. But it still will run into the challenge of a Republican Senate that would surely filibuster such legislation. I mean, Republicans have worked for 50 years to gain control of the Supreme Court. And at this point, a super majority of justices, and they're not going to let that go away very easily. And so you would expect them, even in the face of what I think are very common sense reforms, ethics reform and term limits, do not inherently benefit one side or another, certainly not over time when you think about term limits. And yet the conservative power on the court has become so entrenched that they can't give even, can't even agree on ethics reform, more or less this idea of their Supreme Court justices having to have a shorter period of service, even though that's uniform across justice appointed by every president. And I think it's going to take the will of Democratic senators to break the filibuster one way or another in order to enact these common sense reforms. Now, you mentioned, of course, there's the court itself and its composition and its possibility of ruling on the constitutionality of these measures, which are aimed at the court. Can you talk a little bit about that, how you see that playing out with the current court's composition? Yeah. And so, you know, talked a little bit about the hurdles in enacting a law that either imposes ethics standards or term limits on sitting Supreme Court justices. But the constitutionality of those laws, even though, again, there's sort of support across the ideological, academic spectrum for the constitutionality. Whether or not something's constitutional fundamentally is whether or not five justices on the Supreme Court say it is. And I think here too, you will run into, again, justices Lido and Thomas don't think there should be any ethics applied to them. And so, would the Supreme Court even allow ethics standards to be imposed upon them, a binding code to be imposed upon them, or would they strike it down? And you sort of think this Supreme Court in particular, the way that they have pushed for power and entrenched power in their role are probably not likely to find term limits, which would inevitably move some of them off of the court perhaps sooner than they'd like to like to be constitutional. And so, I think that we have to sort of consider not only what is it going to take to enact these wildly popular common sense reforms, but what is it going to take to have a Supreme Court that at the end of the day finds them constitutional, which on the merits they would appear to be, but this seems to be a Supreme Court that's making its decisions based more on politics than the law. And it's hard to see justices like that ruling in favor of term limits or possibly even a binding code of ethics. So some commentator, I know Ellie Mistall has written and suggested that the reforms themselves won't work without other more major reforms he's pointed to, Supreme Court expansion. I'd like to hear you take on what else is on the table in terms of reforming the Supreme Court in the face of these headwinds. Yeah, and I definitely agree with that take that these are ethics reform and term limits are incredibly important reforms as a first step to really reforming the court. I do think you also need Supreme Court expansion in part to fairly consider Supreme Court reforms and their constitutionality. And then I think we need a whole set of reforms to really consider the role of the court in our lives and in our government. When we think about the problem we're trying to solve here, we're trying to I think solve for two problems. One is that the Supreme Court is too political. The other is that the Supreme Court is too powerful. And you're starting to see changes based on the political nature of the court, the fact that the confirmation process is so politicized, the fact that justices are making more and more decisions based on politics and their personal ideology, maybe their financial benefits rather than the law. There's the political aspect of the justices. But I personally don't think that if we had a six, three super majority of progressive justices on the Supreme Court, that everything would be fine. I think we also have a problem that the Supreme Court as an institution has become too powerful. And in particular, it's become too powerful in relation to the other two branches of government. When we think about how we were taught about the United States government and having checks and balances or being between the executive branch, the legislative branch, the judicial branches, sort of like three legs of a stool, right now the stool is so lopsided because the judicial branch is so long, the power is so big that it's taking over the ability of Congress and the legislature to take action on even common sense things like voting rights. It's making it harder for the executive branch to pursue regulations related to consumer safety, environmental protection, even international relations and immigration. The Supreme Court is amassing so much more power for itself, it's necessary for the other two branches to come in and to provide that check and restore balance. And so I do think that the term limits and ethics reform sort of do get at that a little bit. That's not principally what they're trying to solve for, but really we have to start looking at the jurisdiction of the Supreme Court and should it be limited. We have to look at whether or not we can make it easier for Congress to overturn a Supreme Court decision. We need to look at how many justices it should take for the Supreme Court to overturn an act of Congress. I think there are a lot of other structural reforms that have not been as well debated and considered by the American public yet, but they have to be on the table because I think when we think about rightsizing the Supreme Court, we shouldn't just think about rightsizing the size, literal number of justices and composition. We also need to think about how we're rightsizing its role in our democracy and its functioning in our system of government. This is, I think, very interesting because there's a lot of, you know, I think on size of the political spectrum, there can be Supreme Court decisions that one can point to that. We have not been democratic per se in the, you know, small decent, but nevertheless people are pleased that the court sort of stepped in and provided this check on democracy or on the political process. And so I'm wondering how it, it sounds like you're talking about almost a shift in how we see the court and how we see our democracy and if you could say more on that, for example, you know, some of the big decisions in the 50s, 60s, 70s were sort of the court playing that role. And they think we've seen that on a different ideological bent in the past couple of decades. But I'm just curious how you see the role of the court changing. I think that especially with this Supreme Court, it has just continued to amass power for itself in ways in which then you sort of combine it with the way that this Congress has sort of become more polarized. The legislative branch has become more polarized. The idea that the Supreme Court keeps striking down laws that have been, you know, enacted and signed by the democratically elected branches of government. And they say, oh, this is unconstitutional, but if you don't like it, go ahead and pass a law to fix it. They know that these things are not going to happen because the entrenched power is such that Republicans in Congress, so sort of speaking in perhaps partisan terms, the Supreme Court is striking down a lot of legislation and ideas passed by Democrats in Congress. And then they're relying on the Republican allies in Congress to block any attempts to change. I mean, you just look at, for example, the Lilly Ledbetter Act, which was one of the few times that Congress has actually overturned a Supreme Court decision and how hard that was because there was a possibility of a Republican filibuster, there's possibility of Republican president vetoing it, sort of it took years to make a small change in the law to provide for greater pay equity. And that's sort of the idea then right now of how hard it is for the democratically elected branches to step in and sort of reassert themselves in the face of Supreme Court decisions that they may not agree with. It's just too much power is being given to the Supreme Court, and the Supreme Court keeps taking more and more that, you know, if nobody steps in and checks the court, it's going to keep grabbing more power for itself, more power for itself, and it's going to cripple the other two branches of government. And I think that we need to find a way to restore that balance so that the executive branch can continue to have regulations that might protect our environment and workers and sort of handle immigration or gun violence prevention or sort of look at the different ways in which the Supreme Court is stepping in. It's seeking to be the final word on every single policy debate in our country. And I don't think that that's the way that it should function. How should our audiences, we've got lawyers, law students, and people who are just, you know, allied and thinking about this, plug in to actually help continue to push these reforms forward? I mean, I do think that especially among lawyers and law students, we have a particular responsibility to take our education and sort of our stature as it was and explain the court for how it really is. I think one of the challenges around Supreme Court reform and explain the Supreme Court has been that people will see decisions and they'll say, well, I don't agree with that decision, but I'm not a lawyer. So maybe there's a piece of this that I don't understand and the Supreme Court still came to this sort of under the law and the Constitution. And the reality is this Supreme Court is not on the level anymore. And sort of I think that, you know, when we have a debate around the Affordable Care Act, people don't say, well, you know, I'm not a doctor or a nurse, so I shouldn't have an opinion on the Affordable Care Act. Or when it comes to tax cuts, they don't say, well, I'm not an accountant, so I shouldn't have an opinion on taxes. But that mentality for some reason, when it comes to the court and when it comes to decisions, this is changing. I think the mentality is changing, but there often is a deference to lawyers. And I think that as lawyers, as law students with legal education, we sort of have the ability to say, you know what, this isn't down the level. You think it's wrong because this is not actually what the Constitution requires. This is not what the rule of law has stood for. This is not the precedent is. And this is how the Supreme Court is bending things to fit their ideological and political outcomes. So let's move together to reform the court. And I think that the same way that we're having conversations around any other kind of political or policy decision, we need to be having those conversations around the court. And then we need to be having those discussions with lawmakers who understand that this is an issue that is important to preserving our democracy and to preserving the progress of every single other issue that they're working on. Every single issue, when somebody runs for Congress and they're running for economic justice or doing something around climate change or gun violence prevention, they have all of these plans on their website and on the stuff, all of those are going to be questioned by this Supreme Court and possibly struck down given the trajectory of the court today. So it's up to us to ask lawmakers and candidates, what is your plan for the Supreme Court? Do you understand that even though you support these core principles that I may agree with, if we don't have an answer for the court, we don't actually have a full solution. So how can we expand the way we think about the court? The Supreme Court, Supreme Court reform is not a separate issue that you set to the side. And like we should deal with that separately or different or later, the Supreme Court reform is the overarching area that affects every single thing we care about. Every single thing, voting rights, reproductive justice, civil rights, all of these things that the environment, anything you care about, anything that gets you out of bed to make a call to your member of Congress, to knock on doors for a candidate, to have a conversation across the kitchen table with your family and say, "This is important." You have to understand and you have to educate other people that and therefore the Supreme Court is also important as well. And when we make the Supreme Court part of every conversation instead of a separate one, I think we'll really continue to move this movement for reform further along. Well, thank you so much. I hope that our listeners will definitely check out the ACS website, see more of our writings on Supreme Court reform, check out Chris Kang. It's amazing working in this area and continue to plug in. And I appreciate you so much for joining us and taking the time, Chris. Yeah. Thanks again for having me. (glass shattering)

Podcast Summary

Key Points:

  1. Discussion on Supreme Court Reform, including support from President Biden.
  2. Importance of Supreme Court ethics code and need for enforcement mechanisms.
  3. Proposal for term limits for Supreme Court justices to address issues of power concentration and strategic retirements.
  4. Constitutional considerations and proposed mechanisms for implementing term limits, such as transitioning to senior status.
  5. Expected impact of term limits on Supreme Court appointments and responsiveness.

Summary:

The podcast episode featured Tonga Leslie and Christopher King discussing Supreme Court reform, highlighting President Biden's support for major reforms. The need for a binding ethics code for Supreme Court justices was emphasized, along with the lack of enforcement mechanisms. Term limits were proposed to address issues of power concentration and strategic retirements among justices.

Constitutional scholars suggest implementing term limits through statutes that transition justices to senior status after a set term. This approach aims to maintain judicial roles while ensuring turnover and responsiveness in Supreme Court appointments. The discussion underscored the importance of these reforms in maintaining the integrity and effectiveness of the Supreme Court.

FAQs

The United States Supreme Court is the only court not subject to a binding code of ethics. Justices are held to no standards, which is different from other federal judges who are subject to a binding code of conduct.

Term limits would prevent justices from serving indefinitely, ensuring a more regular turnover to keep up with changes in society and prevent excessive concentration of power in one individual.

Legal scholars believe that term limits for Supreme Court justices can be achieved through legislation that would be constitutional. Possible approaches include transitioning justices to senior status after their term limit.

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