President Joe Biden’s sweeping proposals to change the U.S. Supreme Court and presidential immunity are being met with a variety of responses.
Brad Jacob, a Regent University professor and legal expert, detailed Biden’s plans for CBN News, explaining why he believes the president’s proposals are rooted in political “discontent.”
“The primary thing that’s going on here is discontent within the political left with recent decisions of the Supreme Court,” he said. “And that’s nothing new. I mean, throughout our nation’s history, if people believe the Supreme Court has messed something up, people try to figure out ways to deal with this.”
Constitutional amendments have been aimed at changing Supreme Court rulings in the past, but Jacob said Biden’s current push concerns the court’s structure.
In recent years, some progressives have pushed for court-packing, which is “adding more justices so that the current president could put on a bunch of people who agree with his viewpoint and overrule the other side.” But the current proposal from Biden deals, instead, with term limits.
Watch Jacob explain:
“Primarily, what’s going on, there [are] folks who believe they’re losing in the Supreme Court today [and they] want to change outcomes, which, honestly, is not the correct way to approach this,” Jacob said. “The Supreme Court is not supposed to be a partisan political animal. The justices are supposed to decide cases correctly under the law.”
The problem with trying to change the court’s structure, he said, is that the other side will simply try to do the same thing when given the opportunity.
“Our original Constitution had no term limits,” Jacob said. “Term limits for the president were added by amendment after [President] Franklin Roosevelt was elected for a fourth term. Up until then, every president had followed George Washington’s lead and stepped down after two.”
He continued, “We don’t have term limits for members of the House and the Senate, although that was a big part of the Newt Gingrich contract with America in 1994, when Republicans took control of Congress. They were going to do term limits, but they didn’t.”
Supreme Court justices have something called “life tenure,” which essentially means they’re on the court for life unless they resign, die, or are impeached and convicted; the latter has never unfolded, though Associate Justice Samuel Chase was impeached in 1804, but not removed from office.
“In reality, it’s very hard to remove a justice from the court,” Jacob said. “The idea of that was to let the judiciary be independent, to keep it free from partisan politics.”
Jacob went on to provide the strongest arguments for and against term limits. As for the former, he said some presidents don’t appoint any justices while others get to appoint a number of them.
The imbalance can sometimes be evident in the court’s composition.
“I think there’s a worthwhile conversation about something like 18-year term limits for justices… you’d have to stagger it starting out, but, then, every two years, one justice would reach the end of his or her term and have to leave the court,” he said. “And every president, unless someone resigns or dies early, every president would nominate exactly two Supreme Court justices in a four-year term.”
Though there are “reasonable arguments” for this position, he said the strongest debate point is that some justices — like presidents — serve “past their capacity” and stay too long in the job. Thus, removing them on a schedule based on term limits could help prevent this issue.
But, on the flip side, Jacob said there’s a major detriment to this plan.
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“The biggest downside of term limits for Supreme Court justices is, if every president is going to be elected with the knowledge that he or she will appoint two Supreme Court justices, people are going to want to know who they’re going to be,” he said. “And presidential campaigns will now become … campaigns for president, vice president, and two justices.”
Jacob added, “They’re gonna name people up front and say, ‘Here are my candidates,’ and it’s going to add a level of partisanship to the composition of the court that’ll be way worse than what we have today.”
Regardless of which side people fall on, Jacob said imposing term limits on the Supreme Court is a virtual impossibility in this political climate, because it would require a constitutional amendment.
“There is absolutely no chance in God’s green earth of passing a constitutional amendment in today’s world,” he said. “We are way too polarized politically. You have to have two-thirds of the House of Representatives, and two-thirds of the Senate … and then you need three-fourths — 38 out of 50 states would have to ratify the amendment.”
Biden is also calling for an enforceable ethics code for the Supreme Court and a constitutional amendment restricting presidential immunity.
As for the former, Jacob said there is a separation of powers issue at play with the executive and legislative branches coming in and trying to regulate the Supreme Court.
“You can’t have Congress coming in and enforcing how the court does its business any more than the court can enforce how Congress or the president run their offices,” he said. “We have three independent, co-equal branches of government.”
Watch Jacob address the immunity efforts as well here.
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