#Robert B.Hubbell | dreaminginthedeepsouth (2024)

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July 30, 2024

At long last! President Bidenannouncedproposals for significant reforms to the Supreme Court, and presumptive nominee Kamala Harrisimmediately endorsedthose reforms! President Biden has also proposed a constitutional amendment to reverse the Supreme Court’s decision inTrump v. USthat granted extra-constitutional immunity to presidents after they leave office.

Although passing these reforms depends on the outcome of the 2024 election and the successful defense of the proposed laws in the courts, President Biden and V.P. Harris have changed the framework for discussing the Supreme Court. The question is now, “When?,” not “If?”

It has been a long and uncertain road to this point, but the Supreme Court’s stream of lawless decisions issued by a conflicted and hyper-partisan bench has proved too much for the American people. In proposing the reforms and constitutional amendment now, President Biden has ensured that the Supreme Court is on the ballot in 2024.

President Biden places the ethics scandals at the Court front-and-center in his proposal:

[T] he court is mired in a crisis of ethics. Scandals involving several justices have caused the public to question the court’s fairness and independence, which are essential to faithfully carrying out its mission of equal justice under the law. [¶]What is happening now is not normal, and it undermines the public’s confidence in the court’s decisions, including those impacting personal freedoms. We now stand in a breach.

President Biden has proposed three reforms:

1. A constitutional amendment that would provide that there is no immunity for crimes a former president committed while in office2. A binding code of ethics3. Eighteen-year term limits (A president would appoint a new justice every two years, who would serve for 18 years).

Some commentators welcomed the proposals as a “practical way forward” that could garner support for passage after the 2024 election. SeePolitico,Democrats May Have a Real Chance to Reform the Supreme Court. President Biden’s proposal omitted enlarging the Court, a proposal that thePoliticoarticle described as an unpopular outlier not likely to gain legislative support.

Each proposal faces difficulties in gaining passage.

As to the constitutional amendment abolishing presidential immunity, Ian Millhiser inVoxreviewed the historical challenges faced by earlier proposed amendments, including the ERA and a proposal to ban child labor. (To date, neither has passed.) An amendment requires approval by a 2/3 supermajority in both chambers of Congress and ratification by 3/4 of the states (38 states). That is a tall order, indeed.But it won’t happen if we don’t try.And Republican states may be more supportive of such an amendment if they perceive that a Democratic president—like Kamala Harris—is too powerful.

The binding ethics code is plainly constitutionalbecause the Constitution grants Congress the authority to create “exceptions” and impose “regulations” on the Court’s exercise of appellate jurisdiction. But the plain words of the Constitution haven’t prevented Justice Alitofrom taking the positionthat Congress is constitutionally prohibited from imposing regulations on the Court. Alito should lose, but it will be a fight.

As to the term limits,there will be a fight over whether the Constitution’s grant of life tenure to judges—subject to good behavior—permits term limits. Some constitutional scholars (includingProfessor Laurence Tribe) believe that term limits are permissible in the absence of a constitutional amendment, whileothers disagree. The Supreme Court would likely decide this issue.

One reform not suggested by President Biden is enlarging the Court.That path would not be subject to constitutional challenge and would require only a majority vote in both chambers of Congress (and a carve-out to the filibuster, which requires only 51 votes in the Senate). But for reasons that escape me, many politicians and observers view the least legally objectionable pathway as the most radical. Nonetheless, Senator Edward Markey of Massachusetts has proposed legislation to enlarge the Supreme Court to thirteen justices. See Democracy Docket,‘We Must Expand the Court:’ Sen. Markey, Advocates Call for Adding 4 SCOTUS Seats.

Oddly, inan interview with Laura Ingrahamon Monday, Trump criticized President Biden’s proposal, claiming that Biden“wants to pack the Court.” Laura Ingraham responded, “That’s not in Biden’s proposal.”

Regardless of the way forward, reforming the Supreme Court is now on the table with the support of President Biden, Vice President Harris, and leading Democrats in Congress. It will happen—if only because the current reactionary majority will continue to curtail the rights and liberties of all Americans. It is only a matter of time—and it is up to us. We must all vote as if Supreme Court reform is on the ballot in 2024—because it is!

Kamala Harris continues to challenge Trump / Vance directly and vigorously

On Monday, an Iowa six-week abortion ban went into effect. At a campaign rally, V.P. Kamala Harris repeatedly referred to legislation restricting reproductive liberty in the states as “Trump abortion bans.” See WSJ,Harris Puts Abortion, a Weakness for Trump, at Center of Campaign. As noted in the WSJ article, President Biden was reluctant to say the word “abortion,” while Kamala Harris is a “fighter” on the issue who is willing to urge voters to “stop Donald Trump’s extreme abortion bans.”

Some (most?) women sensed President Biden’s discomfort on the issue and are responding positively to Kamala Harris’s strong support for access to abortions and reproductive healthcare for all women in the US. Harris’s approach resonates with many women in America who felt that President Biden was a reluctant advocate for abortion rights, even though President Biden and Kamala Harris support the same policies.

The Harris Campaign continues to go after Trump and Vance with lightning speed and full force. Within hours of JD Vance removing his absolutist abortion stance from his website, theHarris HQ Twitter feedposted Vance’s now-deleted position with the comment, “Weird that Vance just deleted this from his website.”

The Harris campaign also posted a quick reply to Trump's claim on Monday that the Biden-Harris record on crime was “terrible.” The Harris campaign postedthe following:

Our opponent Donald Trump is a criminal.

• Migrants were more likely to be released after a border arrest under President Trump than under the Biden-Harris administration.• As president, Donald Trump oversaw the largest single-year spike in the murder rate in more than a century.• As president, Trump proposed a $400 million cut to local law enforcement funding.• Trump has demanded the defunding of federal law enforcement, while proposing using the FBI and Justice Department to go after his political enemies.• JD Vance said, "I hate the police."

The Harris Campaign is also amplifying a clip from Trump's interview with Laura Ingraham thatincluded this exchange:

Ingraham: Why not debate Kamala Harris?Trump: Because everyone already knows everythingIngraham: They’re saying you’re afraid of debating herTrump: I’m leading in the polls

Can you smell the fear? It isnot truethat Trump is leading in the polls. The race has tightened considerably, with Kamala Harris making up persistent deficits posted by President Biden. The race remains close, within the margin of error in many polls, butthe trends all favor Kamala Harris.She has the momentum, and Trump and Vance are on the defensive.

So, if you are feeling good about Kamala Harris’s candidacy, you should be. After a whole week as the presumptive nominee, she continues to have the Trump campaign on its back foot. And the first three days of this week will feature massive online fundraisers and strategy meetings with hundreds of thousands of volunteers!

I invite readers who attend(ed) any of the online meetings to post your observations in the Comment section.

While we have reason to be hopeful, we have no reason to be complacent. We must beat Trump by a wide margin to remove all doubt and opportunity for election interference by Trump or the Supreme Court. (See Concluding Thoughts.)