On July 29, President Joseph R. Biden Jr. called for a set of reforms to the Supreme Court, including term limits and an enforceable code of ethics for justices. He also called for a constitutional amendment to overturn the court’s recent decision establishing a presumption of presidential immunity from criminal prosecution for broadly defined “official” acts. On Aug. 1, the Senate majority leader, Chuck Schumer, introduced legislation that would attempt to reverse or limit that same decision by removing the Supreme Court’s jurisdiction to hear appeals on the matter.
There is no real chance of any of these proposals moving forward. Mike Johnson, the speaker of the U.S. House, declared immediately that any such legislation would be “dead on arrival” in that chamber. The proposals would also almost certainly face a Republican filibuster in the Senate, and a constitutional amendment would have to clear the even higher bar of approval by two-thirds of both legislative houses (or a convention at the request of two-thirds of the states), followed by ratification by three-fourths of the states.
Since the immunity decision involves a former Republican president, now running to regain that office, the proposals likely will be perceived as red meat for partisan electoral politics rather than as sober attempts at reform. That is unfortunate, because as the editors of America have noted in recent years, the United States is overdue for a serious conversation not just about possible changes to the Supreme Court, but also about the functioning of our system of separation of powers and of checks and balances among the three branches of government.
While the Supreme Court’s decision about presidential immunity is a significant—and understandable—flashpoint, it is itself the direct product of the failure of the Senate to hold former President Donald J. Trump accountable in an impeachment trial for his actions related to the Jan. 6 riot at the Capitol. That failure was arguably made more likely because impeachments, like Mr. Trump’s first or even the 1998 impeachment of Bill Clinton, have been viewed not as legitimate correctives of executive power but as partisan exercises.
Claims of Supreme Court overreach are not new. This year’s immunity decision and the 2022 Dobbs ruling overturning Roe v. Wade are the current topics of such criticism, but presidential and legislative inability to respond to the court’s radical decision in Roe v. Wade is itself what led to the decades-long struggle to reshape the court by means of nominations. The immunity decision parallels Roe v. Wade as well in reading into the Constitution a complicated multi-stage analysis guaranteed to require further clarification by the court. In her dissent in the immunity case, Justice Sonia Sotomayor quoted Justice Samuel Alito’s majority opinion from Dobbs, writing that the new “official-acts immunity has ‘no firm grounding in constitutional text, history, or precedent.’”
The problem here—beyond the question of whether or not the immunity decision was correct in the first place—is that the lack of constitutional grounding makes it difficult if not impossible for the legislature to work toward any incremental compromise or reform of the matter. The issue of presidential criminal liability, which deeply affects the system of checks and balances, is now locked up by the court, as abortion was.
The breakdown in checks and balances can also be traced to executive overreach, a concern the editors evaluated in regard to President George W. Bush in 2008 and President Barack Obama in 2016. In fact, during his campaign for the presidency, Mr. Obama warned that Mr. Bush had tried “to bring more and more power into the executive branch and not go through Congress at all.” Yet Mr. Obama went on to sign nearly as many executive orders as Mr. Bush.
Even more basically, the problem can be traced to Congress’s sclerotic inability to legislate, an incapacity that has brought the nation to the brink of government shutdown and a debt default, and prevented meaningful progress on major issues like comprehensive immigration reform. As the editors argued in 2020, these patterns incentivize using the court as a “relief valve for legislative dysfunction and executive overreach” and amount to “a slow-motion disaster for democracy.”
“It is not enough merely to moderate partisan criticism, to increase calls for unity or to turn down the temperature of our politics, as if American political life were basically healthy except for a temporary fever,” America’s editors wrote in an online editorial on July 16 after the assassination attempt against Mr. Trump. “As a body politic, we are chronically ill and in need of treatment that must extend beyond this election cycle.” Our political pathology is not just division, polarization and partisanship, but a breakdown in the fundamental give-and-take that is meant to regulate the exercise of governmental power in the United States. That dysfunction has been building for a long time.
There is no quick fix. Whatever the wisdom of Mr. Biden’s or Mr. Schumer’s proposals about the court, the issue will be resolved neither in the three months left before the next election nor by the election itself. The American people need political leaders to rise to the much higher challenge of a sustained national conversation, across the political spectrum, about the design and functioning of our democracy.
Supreme Court reform should not be the only item on the agenda. If the nation talks about term limits for the court, it should also discuss term limits for Congress. Campaign finance reform should also be on the agenda, along with the party primary system. If polling in this election cycle is any guide, voters would probably want to consider age limits for candidates as well.
More complicated topics, such as reform of the process by which voting districts are redrawn, are likely to come up as well. Recent elections of presidents who won the Electoral College but not the popular vote are also a reason to discuss reforms to that system. And presidential accountability, whether under impeachment or in criminal court, should also be considered.
The point, however, is not to concoct reforms meant simply to transcend partisan conflict. Instead, we should heed the wisdom of the founders, who sought to forge a system that can supply, “by opposite and rival interests, the defect of better motives,” as James Madison wrote in Federalist No. 51. We should anticipate partisan disagreement and individual ambition and try to channel them to limit misuses of power—rather than allow them to obstruct the basic operation of government, as they too frequently do now.
The United States needs, now as ever, “to form a more perfect Union,” a task that was not finished in 1789 and will continue long past 2024.
