Transcript
STEVE INSKEEP, HOST:
We ask how much President Biden's proposals would alter the U.S. Supreme Court. The president wants a constitutional amendment to reverse a court ruling on former presidents and their immunity from prosecution. Biden also wants term limits, 18 years for each justice rather than a life appointment, and he wants to impose an ethics code.
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PRESIDENT JOE BIDEN: In recent years, extreme opinions that the Supreme Court has handed down have undermined long-established civil rights principles and protections.
INSKEEP: Michael Waldman joins us to discuss all of this. He is president of the Brennan Center for Justice at the New York University School of Law and was also a member of the Presidential Commission on the Supreme Court, which Biden appointed back in 2021. Good morning, sir.
MICHAEL WALDMAN: Good morning. Great to be with you.
INSKEEP: How significant would these changes be?
WALDMAN: This is very significant. As we all know, the Supreme Court has vast power and minimal accountability. Public trust in the court has plunged in every poll to the lowest level ever recorded. It's an institution that is broken in fundamental ways. And these are modest and commonsense and, I think, significant steps that would make things right. Term limits for justices, for example - 18-year term - would rest on the basic idea, which is pretty central to accountability, that nobody should have too much public power for too long.
INSKEEP: Let me ask specifically about the ethics code. I believe Justice Samuel Alito has said in public, no way can anyone ever impose an ethics code on us because of the separation of powers. I guess that what the president is proposing is that Congress would write and pass a law that would include an ethics code. Do you believe that that is constitutional?
WALDMAN: Oh, absolutely. Congress can do that. Congress has legislated in a bunch of different ways for ethics for judges. And Elena Kagan, one of the other justices, when Alito said that, she went public and said, oh, of course, Congress can do this. The court right now has a very mushy code of conduct. They issued it, they said, because the public had a, quote, "misunderstanding" about the court's ethics. There ought to be some teeth in it - something mandatory.
INSKEEP: Let me ask a couple of questions about the timing of this. I will note, for those who don't recall, President Biden appointed you, among others, to study the court as part of this commission in 2021. From the outside, if I could give a cynical take on this, I assumed that the president was appointing this commission as a kind of safety valve so that you could study the court rather than making a bunch of changes that Biden actually didn't want to make. Did you understand your job as being that - being a safety valve rather than making reforms?
WALDMAN: Well, it was a very distinguished group of experts and scholars, and we were instructed at the outset not to make recommendations. But what we found was a massive national consensus in a significant way for a lot of these reforms and that these are things that have been at the center of public debate in the past and could again improve the workings of the court and bring it back into having more public trust.
INSKEEP: Although I'm just asking - do you think the president didn't really want to make these reforms, and, if so, why do you think he's proposing them now, toward the end of his term?
WALDMAN: He, as we know, has been involved in judicial issues, judicial nominations for decades. He was reluctant, as I think he said, but I think that the court has become so extreme and with rulings like the one earlier this summer in violation of all the precedents and what the history teaches us, saying that presidents have vast immunity from criminal prosecution - rulings like that rattle people's confidence and give a real sense of the need for some changes.
INSKEEP: Do you worry about the flip side of describing that same thing - that the president is responding to rulings he did not like by saying that the justices currently on the court should have a limit to the time they can stay?
WALDMAN: The term limits proposal in particular has very wide public support among Republicans and independents and Democrats. The most recent Fox News poll on this showed 8 in 10 Americans support this. It's how it's done in all but one state Supreme Court, for example - there's a term limit or an age requirement - and it's how it's done in the constitutional courts of other countries. So it really could be done irrespective of partisan views. I think that the public is there. There's a public consensus. Of course, the political system is a different story.
INSKEEP: Do you approve of Biden leaving out the idea of expanding the court, which is something that a lot of progressives wanted?
WALDMAN: I think that expanding the court, which is emphatically legal - Congress has the power to do that and has done it in the past - would potentially be very controversial and have much less public support than term limits, which would bring the court in line with a changing country without upending the way the court works.
INSKEEP: Michael Waldman of NYU, thank you so much - appreciate your insights.
WALDMAN: Thank you. Transcript provided by NPR, Copyright NPR.
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