President Biden’s Proposed Supreme Court Reforms SUBTITLE: Constitutional historians evaluate President Biden’s reform package a three-fold plan to reform the Supreme Court. The proposal includes a constitutional amendment that no former president is immune from prosecution for crimes committed in office, 18-year Supreme Court term limits, and a binding code of conduct for Supreme Court Justices. In this episode, constitutional historians Keith Whittington of Yale Law School and Anthony Michael Kreis of Georgia State University and author of the new book Rot and Revival: The History of Constitutional Law in Political Development, join Jeffrey Rosen to discuss the mechanics and merits of President Biden’s proposed court reforms and delve into the relationship between politics and the judiciary from the founding until today.
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Today’s episode was produced by Lana Ulrich, Samson Mostashari, and Bill Pollock. It was engineered by Bill Pollock. Research was provided by Samson Mostashari, Cooper Smith, and Yara Daraiseh.
Participants
Anthony Michael Kreis is an assistant professor of Law at Georgia State University College of Law, where he teaches constitutional law and employment discrimination. He has also participated in civil rights litigation and civil rights legislative initiatives. His new book, Rot and Revival: The History of Constitutional Law in Political Development, was published last month.
Keith Whittington is David Boies Professor of Law at Yale Law School. He is founding chair of the Academic Committee of the Academic Freedom Alliance and a Hoover Institution visiting fellow. He is the author of several books including Repugnant Laws: Judicial Review of Acts of Congress from the Founding to the Present (2019) and most recently, You Can’t Teach That!: The Battle Over University Classrooms (2024).
Jeffrey Rosen is the president and CEO of the National Constitution Center. Rosen is also a professor of law at The George Washington University Law School and a contributing editor of The Atlantic. His most recent book is The Pursuit of Happiness: How Classical Writers on Virtue Inspired the Lives of the Founders and Defined America.
Additional Resources:
- President Joe Biden, "My plan to reform the Supreme Court and ensure no president is above the law," The Washington Post (July 29, 2024)
- Presidential Commission on SCOTUS
- Anthony Michael Kreis, Rot and Revival: The History of Constitutional Law in Political Development (2024)
- Keith Whittington, Repugnant Laws: Judicial Review of Acts of Congress from the Founding to the Present (2019)
- Keith Whittington, Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadership in U.S. History (2007)
- “Can Congress enact Supreme Court term limits without a constitutional amendment?,” Constitution Daily (July 2024)
Excerpt from interview: Keith Whittington explains that while courts now often have the final say on constitutional matters, historically, presidents and Congress have also asserted their own constitutional interpretations, sometimes challenging judicial decisions.
Keith Whittington: I think certainly in the current era, we tend to think of the court not only having a final word on what the Constitution means, but really being the primary player and in telling us what the constitution means. There's a lot of deference to judicial interpretations by other branches and by the people at large. There's a real inclination for elective leaders at this point to say, well, constitutional issues are really questions for the court and we can't weigh in on that or we can't resolve those and so we'll just have to wait and see what the court tells us. And that's not always the way we've approached either the Constitution or the courts and their authority to speak to constitution issues. There's a longstanding respect for the idea that courts ought to be able to resolve the cases that come for them, and other political branches should not interfere with the resolution of those individual cases.
But it's been periodically much more contested as to the degree at which the court should really have the final word on what we take to be the meaning of the Constitution. And what kind of independent responsibility do the other branches have, both the executive branch and the legislative branch to be thinking about what the Constitution means themselves, to try to adhere to their understandings of the Constitution as they engage in their own practices and actions. And to what degree sometimes they may come to different conclusions about what the Constitution means, then what the court might think it means. And I think that there's a certain, periodically to how the President in particular and the court have related on these issues over time that presidents through much of American history are often very content, to have the courts take the lead.
And thinking about constitutional issues. Frequently, those constitutional issues are controversial. They frequently are unpopular with the general public or they may divide the president's own political coalition and presidents in many of those circumstances, are happy not to have to take responsibility for articulating what the Constitution means or even adhering necessarily to what the Constitution means. But to sort of say well, look courts have resolved this and my hands are now tied and you can blame it on those unelected judges as to what they've done. But that's not always been true. There have been occasions, I think, when presidents, both feel that the direction in which the court has gone and how it thinks about the Constitution, it's radically at odds with the president's own political agenda and policy agenda more generally their larger constitutional ideological vision about what the future of the country might look like.
And there are greater political incentives to presidents than to take command of the constitution and control over it and really own a state of constitutional interpretations and say, no this is what I think the constitution means. I'm going to campaign on that. I'm gonna win elections on that. My party's gonna win elections on that. And others who disagree with those interpretations should take a backseat to the interpretations I have to offer. And that may include the court itself ultimately, what the form of the pushback looks like can vary, but as was suggested while ago that part of what we can see with these kinds of measures even the President Biden has now suggested is they are bid in keeping with proposals that politicians have made in the past, which often don't come to fruition, but they are a shot across the bow at the court.
And the justice pays attention to that kind of political pressure. And the justices are often very reluctant to actually pick fights with the elected branches if it feels like the elected branches are serious about their commitments and actually willing to have a real fight. The justice will frequently back down and sometimes jostling over these kinds of court reforms is one of the ways in which political branches signal to the courts. No, we actually care about this one. And we're not happy with the direction you're going. Maybe you ought to take a back seat for a little while on where we're headed.
Excerpt from interview: Anthony Michael Kreis highlights the delayed recognition of political decisions' impacts, current discontent with the Supreme Court, and heightened polarization between rural and urban voters.
Anthony Michael Kreis: So to reinforce, I think a really important point is so many of the things that happen in American politics that have long-term multi-year consequences, we don't know until well after the consequences happen. So it may be 20 years before you can truly fully appreciate what's happening now, because every decision produces a policy which produces new politics, produces new mood policies and the cycle kind of goes on. And it reminds me also of something very similar that Stephen Gronik, who's one of the leading APD scholars out there, wrote in his book about presidential politics, is that very often times we look back on reconstructive presidencies with this kind of memory hole where we think, oh, how amazingly effective and competent they were when they also had many deep struggles in trying to form their coalition and to get a grasp on things.
FDR for example, had a terrible time trying to figure out what his New Deal coalition was going to look like, particularly 1937 going into 1938, where there was a real struggle of what did it mean to be a new deal Democrat? What did liberalism mean in terms of the coalition? So, every coalition that has these really big important reconstructive moments tend to be looked back upon with hindsight in a way that the people who were living through those moments may not have also or may not have recalled them as being. And so I think we should always be careful. That's why I would agree with the king of the stance that Professor Whittington took here, which is you have to be careful in being too quick to say, ah, this is the reconstructive moment it's happening.
Or saying, no, this is absolutely not happening. We have to be very cautious because it takes so much time to figure out, which I think is also, by the way, a real plug for American political development as a subfield of political science and as a way to study political history and particularly in law because time is such an important factor here. What I do think, though, is different perhaps about the moment that we're in, and that's causing some of the kind of angst that we're seeing in public debate. And some of the positions that are very hostile towards the Supreme Court is that we are perhaps in a situation where our institutions aren't as majoritarian, at least in the political branches as they have historically been. At least from a liberal perspective, if I look back to 2016 in that election, you didn't really hear a lot of talk prior to 2016 about the electoral college being this deeply anti direct democratic institution and feature of American governance. And of course academics. We talked about things of that nature for a long time, but it probably wasn't on the median voter's tongue at that.
Until that point in time. And suddenly with the election of Donald Trump in the Electoral College but not winning a majority, you saw this kind of outrage about Donald Trump and the ability to secure the White House without a plurality of the popular vote. And at the same time, we have the United States Senate, which is more malapportioned than it ever has been. And it deeply, I think it reflects in a much more outsized way the interest of rural voters to urban voters and suburban voters. And that has caused a lot of controversy and discussion and debate. And so when you get to a point where you are nominating and seeking advice and consent for Supreme Court justices with a president who won in the Electoral College but never won a majority of the popular vote and never really secured a majority approval in polling. And you had a number of senators approving those confirmations who didn't represent a majority of Americans, you get the sense that people see the Supreme Court as entrenching minoritarian upon minoritarian rule as opposed to reflecting the kind of dominant coalitions of Americans' political choices over time.
And so I think part of the heightened angst amongst liberals is this idea that the court has this minoritarian interest now entrenched in a 6-3 majority and that that somehow is kind of a really unacceptable degree of being removed from the public's kind of mainstream public views. And so you have all that going on. And I think it's only getting amplified by the fact that our politics are becoming increasingly polarized, but especially increasingly polarized on rural and urban suburban lines. Which only enhances this kind of problem of the electoral college seeming to be incredibly problematic from Democratic voters' perspectives and the Senate being malapportioned as it is. And so we're really tapping into the court as being, is the court as an institution representative of the public that it serves? And you have 50% plus of the country who say no, and you have 50% more or less, give or take, who say yes. And so that's a really deep division that's going to have to be settled one way or the other, either by just acquiescence and somebody gives up and says, okay, you can reform the court or, okay, there won't be any court reforms and we'll just accept the 6-3 court that we have.
I don't know where our politics are going to go, but you have a lot of kind of this background angst feeding into the court not being viewed as representative, but then the court is kind of leaning into these bombshell issues, which are salient and even more polarizing. And so the Dobbs decision in particular, the backlash that was seen in 2022, into 2023, perhaps into 2024, it's significant. Now I don't know, and again, this is where time is so important. I don't know what it's going to mean in the long term. I don't know if it's going to affect calls for court reform or electoral outcomes, or if that will feed some kind of structural realignment within voting blocks and voting coalitions that have a long term impact on the way Americans vote, which is all possible. We'll have to really wait and see. But we're just in this moment, I think of a lot of agitation. And liberals are agitated, conservatives are agitated, and it's kind of a powder keg that at some point is going to have to be resolved. And it just depends on some of these kinds of big, high stakes electoral decisions that the public has to make that will determine the kind of long term trajectory of where we go on this question.
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