WASHINGTON, DC — Vice President Kamala Harris joined President Joe Biden’s call on Monday to fundamentally abolish the Supreme Court’s independence, destroying its status as a separate branch of government shielded from political pressure, with specific features that are so clearly unconstitutional they could only be done by changing the Constitution itself. And conservative leaders are calling out the Biden-Harris scheme for what it is.
The Washington Post published an op-ed from Biden, pushing three structural changes to America’s basic safeguards for liberty found in the Constitution’s separation of powers. And Democrats’ new torchbearer — Kamala Harris — publicly embraced Biden’s agenda, thereby making it an issue for the presidential campaign.
First, Biden argues that Supreme Court justices should serve 18-year terms, so every two years, there will be a vacancy that the current president would fill. It would abolish lifetime tenure, which all federal judges at every level have had since the Constitution was ratified in 1789.
Any such law would be unconstitutional because the Constitution says all federal judges continue to hold their offices “during good behavior.” Unless they are convicted of a felony, they serve until they retire or die in office.
Second, Biden called for the Supreme Court to be bound by an “ethics code” imposed by Congress. As previously explained in detail, this is nothing more than “reverse court-packing.” Instead of adding seats the Supreme Court, Democrats seek to create a list of rules that would routinely recuse conservative justices from key cases, leaving a liberal majority to render decisions with which far-left politicians like Harris agree.
This too would be unconstitutional. The Supreme Court is created by the Constitution, not by Congress, and lawmakers can no more impose a code on the court than the justices could impose a code on the House and Senate. Lower courts are created by Congress and therefore can be regulated by Congress, but the Supreme Court is a coequal branch of government.
Third, Biden wants to strip presidents of the immunity from criminal prosecution for official acts as recognized by the Supreme Court in Trump v. United States. Despite the fact that the Trump decision merely made official what most legal scholars — and certainly all presidents — always assumed existed, it has become a point of rage on the Left.
The bottom line is that each of those three reforms would require a constitutional amendment. And the first two would abolish the Supreme Court’s status as a branch of the government that is independent from political interference, while the third would cripple the institution of the presidency because future presidents would worry if opposition-party prosecutors will pursue them for the rest of their lives after leaving office.
Harris piled on, posting that “there is a clear crisis of confidence facing the Supreme Court as its fairness has been called into question after numerous ethics scandals and decision after decision overturning longstanding precedent.”
This one sentence from Harris contains three verifiable falsehoods.
First, only the Left has been calling the court’s fairness into question. Conservatives are on the losing end of many of the court’s decisions even now — putting a lie to the notion that the Supreme Court has a 6-3 conservative majority — but do not as a group denounce the court’s fairness. And no polling is cited showing that moderates question the court’s fairness.
Second, the so-called “ethics scandals” are fabricated by the Left, creating a gaslighting campaign claiming ethics violations for activities that were consistent with the standards that the justices abide by, such as traveling on friends’ privately owned airplanes or boats not being reportable gifts.
And third, overturning precedent is as rare now as it has always been. Harris just says it because she expects she will not get fact-checked.
“No conservative justice has made any decision in any big case that surprised anyone, so let’s stop pretending this is about undue influence,” said Leonard Leo, co-chairman of the Federalist Society, adding that until Democrats “want to adopt an across the board ethics ban” on gifts for all three branches of the federal government, “let’s all be honest about what this is: a campaign to destroy a court they disagree with.”
“This is a dangerous proposal to destroy [the Supreme] Court’s independence,” posted Mark Paoletta, a central figure in Supreme Court confirmations under Republican presidents for decades, noting that the “proposal is geared to sideline Justices [Clarence] Thomas first & then [Samuel] Alito & [Chief Justice John] Roberts. This is a violation of separation of powers & unconstitutional.”
“This is a frightening assault on the Constitution’s safeguarding of liberty,” added former Ambassador Ken Blackwell, chairman of the Conservative Action Project. “The Far Left is determined to destroy the one branch of government they don’t control, and Kamala Harris is now making clear she would escalate that assault if given the powers of the presidency.”
The Supreme Court was an issue that favored Donald Trump in the 2016. This week’s proposals suggest that Biden and Harris seek to make it a major issue in 2024, betting the issue would work out differently this time, as both sides work to frame it for voters.
Breitbart News senior legal contributor Ken Klukowski is a lawyer who served in the White House and Justice Department. Follow him on X (formerly Twitter) @kenklukowski.