Biden to the Rescue?
Not so fast, argues Luke Pickrell
On Monday, Joe Biden announced plans to “reform the Supreme Court and ensure no president is above the law.” His plans include a constitutional amendment specifying that presidents do not have immunity from crimes they commit while in office, an enforceable code of ethics, and 18-year term limits for Justices. “We can and must restore the public’s faith in the Supreme Court,” said Biden. “We can and must strengthen the guardrails of democracy.” Kamala Harris praised the proposals, stating, “In the course of our Nation’s history, trust in the Supreme Court of the United States has been critical to achieving equal justice under the law.” Old Joe couldn’t help throwing in a few jokes at the end of his announcement, including, “In America, no one is above the law” and “In America, the people rule.”
Biden is correct that “all three of these reforms are supported by a majority of Americans — as well as conservative and liberal constitutional scholars.” However, he omitted something important: laypeople and scholars also say these reforms won’t materialize. Here are some examples.
CNN: “The reforms Biden is proposing would require congressional approval, which would be difficult to achieve before his term ends, as Republicans control the House and Democrats have a slim majority in the Senate. The constitutional amendment, meanwhile, would require a more complicated process involving the states that seem nearly impossible to succeed.”
BBC: “Rarely do lame-duck presidents secure major legislative victories, and, even if so, Republicans, who are happy with the current Supreme Court, control the house.”
Al Jazeera: “The proposals are an unlikely bid by the 81-year-old president.”
Vox: “Biden’s new Supreme Court reform proposals are mostly useless.”
UIC law professor Steven Schwinn: “Biden has an ‘almost zero’ chance of his plan being approved…”
New York Times columnist Jamelle Bouie: “How likely is any of this? The Supreme Court has become so partisan that if the broad public would probably support most of these ideas…the practical reality suggests you're probably not going to get an ethics bill…you probably aren’t going to get term limits…and an amendment is totally off the table.”
Intentionally or not, all of these commentators admit the same thing: popular opinion doesn’t translate into change. Gun legislation? Nope. Money for healthcare and education? Nice try. Reforming the police? Nuh-uh. Change the Supreme Court? Not going to happen. A constitutional amendment? Absurd. Our republic violates the principle of one person, one equal vote through the malapportioned Senate, the gerrymandered House, the unelected and corrupt federal judiciary, the Electoral College, and the veto-wielding and prosecution-proof President. Popular reforms? The Constitution blocks the way.
The Democrats are attempting to shore up trust in the Supreme Court and reassemble the puzzle pieces of U.S. politics. Biden, Harris, and everyone else in the party’s leadership know that Americans have an “unrelentingly negative” view of the current political system and that faith in the Supreme Court has reached a historic low. But don’t expect these reform efforts to change anything. Biden’s proposals will get more people thinking, which is essentially all the Constitution allows us to do. “When the President speaks on something like [Constitution reform], we take it seriously…it doesn’t necessarily mean it’ll prevail, but when you put the presidential seal of approval on it, that tends to increase its importance,” said Michael Gerhardt. Biden is probably trying to “‘raise public opinion’ and raise the issue of the Supreme Court,” said Schwinn. Despite being unrealizable, Biden’s proposals are “still interesting because we just don’t talk about constitutional amendments anymore,” continued Bouie. “I think we should think more about how we amend the Constitution, the kinds of adjustments and fixes we’d like to make to the political system.”
Several books about the Constitution’s flaws, including The Constitutional Bind and Tyranny of the Minority, are best-sellers. DSA’s For Our Right program, released two weeks ago, states, “Our ultimate goal is working-class majority rule, through a democratic constitution that establishes a political system with universal and equal working-class voting rights, proportional representation in a single federal legislature, and ending the role of money in politics.” The latest book by well-known activist Astra Taylor, Democracy May Not Exist, But We’ll Miss It When It’s Gone, cites Daniel Lazare in condemning the Senate and draws on Tom Paine and the Levellers.
Taylor’s dive into the democratic republican tradition and return to Lazare, the popularity of The Constitutional Bind and Tyranny of the Minority, and the FORC program are all part of a more extensive revival of democratic ideas on the left. This resurgence is entirely expected. The ongoing disintegration of the U.S. political system increases the demand for democracy, and those demands run headlong into the Constitution. As this process matures, the Constitution will become increasingly conspicuous.