The Biden-Harris proposal of “Supreme Court reform” – unconstitutional term limits, congressional ethics oversight, and reversing the 2024 High Court decision distinguishing “official” from “unofficial” acts, thereby making presidents personally liable for all acts, is lunacy. Why?
First, these three objectives, separately and together, radically alter the constitutional framework, upending checks and balances architected by the Founders, who sought an independent Supreme Court, able to “say what the law is” (Marbury v. Madison) and thus check the other branches.
Lifetime tenure for Supreme Court justices was meant to insulate justices from politics, keeping them on the bench without elections, concerns over future employment, or political influence.
The Federalist Papers, Constitutional Convention, and Constitution, Article II, Section 4, make clear impeachment is the only remedy for a justice (civil officer) guilty of “treason, bribery or other high crimes and misdemeanors.” The remedy begins in the House and requires 2/3 of the Senate.
The bar is high, but it was meant to be. The goal was to insulate the judiciary from politics. Politics could not become an excuse for removing justices by Congress – or the president’s party – when they did not like their decisions.
While Article III, Section 1 makes clear judges serve “during good behavior,” the standard was objective, not political. So, term limits politicize a branch meant to be above politics.
Second, a thunderclap: Term limits offered by a president who spent 50 years, that is his entire adult life, sucking from the public troth is rather laughable. That would be like Nancy Pelosi railing against insider trading, Rod Blagojevich pushing gubernatorial ethics, Kamila Harris saying .. we should close the border, stop inflation, and stop politicians from giggling in public.
Third, the separation of powers was intentional. The three federal branches – executive, legislative, and judicial – were made not just accountable in different ways, but co-equal. The Founders evinced no intent – short of impeachment – to make one branch subject to the ethics or ethical oversight of another, and certainly not to have the Supreme Court subject to congressional ethics.
Fourth, call this thunderclap two: Does anyone really think Congress is a good judge of “ethics,” that those who sit on the highest court in the land, who only get there with an ethical vetting, and who have their own ethical framework and self-police, become better when they are as ethical as Congress? More to the point, in context, does anyone think this is anything more than politics?
Fifth, on the merits, what logic supports a constitutional amendment making future presidents personally liable for all official and unofficial acts? That is absurd, unworkable, and amputates the presidency, not only reversing the logical Supreme Court decision but assigning personal liability to a president for everything from civilian casualties in war and late FEMA aid in a flood, to liability for regulatory changes and job losses from an executive order. That would kill the executive branch.
Sixth, call this thunderclap three: Getting supermajorities in Congress or three-quarters of the states to go along with such an idea is less likely than a constitutional amendment to reverse the sun’s rise and set, or make Ukraine the 51st state; forget that, if Democrats win, that could occur.
So, net-net, this idea is dumb, done, and yet dastardly enough that serious people should understand where it comes from. Harris and Biden may indulge in lunacy, but their “Supreme Court reform” is code for one-party rule, and that is as anti-democratic as reforms come.
Robert Charles is a former Assistant Secretary of State under Colin Powell, former Reagan and Bush 41 White House staffer, attorney, and naval intelligence officer (USNR). He wrote “Narcotics and Terrorism” (2003), “Eagles and Evergreens” (2018), and is National Spokesman for AMAC.
