President Biden’s SCOTUS Reform Proposal Parallels NYCLA Task Force Recommendations

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NYCLA’s officers are pleased to see President Biden’s proposals on Supreme Court reform.  Early in his term he appointed a special commission on the Supreme Court to study and recommend proposed changes to help rebuild confidence in the Court.  We submitted a report to the commission, prepared by our standing Task Force on the Supreme Court of the United States, containing our proposed changes.  It is posted on both the NYCLA and the commission’s websites.   

We are pleased that President Biden’s proposals, which he announced last week, substantially parallel our own.

First, President Biden proposes term limits of 18 years on the nine justices.  Each President would then be able to appoint two justices in each four-year term.  This could be an antidote to the increasing politicization of the appointment process, which arises (at least in part) from the fact that Supreme Court vacancies are rare, and political actors will sometimes undertake extreme maneuvers to control who gets a lifetime appointment to the Court. 

We do note that, as presently construed, the “service during good behavior” language of Article III has been interpreted to provide for life tenure, so it may not be possible simply to pass legislation to establish term limits.  In our proposal, we tried to deal with that by allowing for justices who have achieved 18 years of service to be designated as justices emeritus, with life tenure and specific responsibilities such as sitting on panels of nine if a justice was required to be recused; handling the Court’s increasingly large and often controversial “shadow docket”; deciding motions; “riding circuit” and hearing cases with the Circuit Courts of Appeals; hearing matters on the Court’s “original jurisdiction” docket (mostly disputes between states, which the Court now generally refers to special masters); and even deciding matters of recusal and enforcement of the Court’s Code of Ethics, as described below.  Congress arguably could pass such legislation as part of its general power to control over the Supreme Court’s procedures, without having to amend Article III.

President Biden also proposes that Supreme Court justices be subject to a mandatory, enforceable Code of Ethics.  That is also consistent with our proposal, and a supplemental report entitled New York County Lawyers Association Report on Scotus Code of Ethics. The Court did ultimately adopt a voluntary Code of Ethics after much criticism of the benefits, including travel and hospitality, received by certain justices, some of which was not disclosed.  By contrast, all other federal judges have long been bound by a mandatory, enforceable Code of Ethics that provides for enforcement, from which the Supreme Court is exempt.  Justice Kagan recently gave forceful remarks about how a Code of Ethics with no mechanism to enforce it was ineffective.

President Biden’s proposal is lacking in specifics as to the enforcement mechanism he would favor.  We at NYCLA proposed that ethics enforcement might be a possible role for the justices emeritus, after serving their 18-year primary term.  Alternatively, the Chief Justice could potentially be in charge of enforcement, unless he (or she) has a personal connection to a particular matter.  The details of the enforcement mechanism need to be worked out, but simply proposing a mandatory, enforceable Code of Ethics is an important first step.

A Code of Ethics should also address complicated questions of recusal. Today, the “rule of necessity” carries the day in most instances: most justices decline to recuse, generally to prevent unnecessary vacancies.  But that rule might fade in importance if there is a group of justices emeritus who could step in for a recused colleague.

About the New York County Lawyers Association
The New York County Lawyers Association (www.nycla.org) was founded in 1908 as one of the first major bar associations in the country that admitted members without regard to race, ethnicity, religion, or gender. Since its inception, it has pioneered some of the most far-reaching and tangible reforms in American jurisprudence and has continuously played an active role in legal developments and public policy.

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