Utah Sen. Mike Lee said President Joe Biden’s proposals to reform the United States Supreme Court would damage its independence and would lead to further politicization of the nation’s judicial branch of government.
“Make no mistake,” Lee told the Deseret News, “these are all part of an effort to delegitimize the Supreme Court.”
On Monday morning, Biden introduced “three bold reforms to restore trust and accountability to the court and our democracy” in an op-ed for the Washington Post.
What changes does Biden want to make to Supreme Court?
The president called for a constitutional amendment to reverse the Supreme Court’s decision that gives presidents broad immunity from prosecution for acts committed within their presidential authority.
Without providing details as to how he expects his proposals to become law, Biden also explained his support for 18-year term limits for Supreme Court justices, instead of the current lifetime tenures. Under this system, presidents would fill a Supreme Court vacancy every two years, Biden said.
Finally, Biden called for an enforceable code of ethics for Supreme Court justices that would require justices to disclose all gifts, avoid all public political activity and recuse themselves from all cases that pose a conflict of interest for themselves or their spouse.
According to Biden — who said he worked on his proposals with conservative and liberal constitutional scholars — these reforms are necessary to preserve the nation’s founding principle: “No one is above the law. Not the president of the United States. Not a justice on the Supreme Court of the United States. No one.”
What does Sen. Lee think about Biden’s SCOTUS reforms?
Lee, who prides himself on his familiarity with the U.S. Constitution, said amending the Constitution and altering Supreme Court term limits “are beyond the ability of Congress to legislate.”
The proposal to institute a binding code of ethics “raises questions as to the propriety of Congress prescribing the code of conduct for another branch of government,” according to Lee, who said the proposal appears to violate the separation of powers and could open up Supreme Court justices to threats by lawmakers or presidents who disagree with their decisions.
“It’s a problem for maintaining the independence of the federal judiciary,” Lee said. “That strikes me as designed to facilitate meddling with the judiciary and intimidating the judiciary for the purpose of influencing the outcome of pending litigation. I think that’s wildly inappropriate.”
Lee sees these latest proposals as part of a Democratic “tirade” against the nation’s highest court following historic rulings that returned abortion law to the states, restricted the freedom of executive agencies and protected presidential authority.
In his op-ed, Biden said the July 1 Supreme Court decision on presidential immunity, made along conservative-liberal lines, grants “presidents broad immunity from prosecution for crimes they commit in office means there are virtually no limits on what a president can do. The only limits will be those that are self-imposed by the person occupying the Oval Office.”
“If a future president incites a violent mob to storm the Capitol and stop the peaceful transfer of power — like we saw on Jan. 6, 2021 — there may be no legal consequences,” Biden said.
But Democrats should not be calling for reforms to the Supreme Court because the “immunity ruling” poses an obstacle to some of the cases being brought against former President Donald Trump, Lee argued.
“(There have been) plenty of circumstances where conservatives have not liked rulings that the Supreme Court has issued and we haven’t shied away from expressing our disagreement,” Lee said. “But conservatives or Republicans, of any prominence, have shied away from delegitimizing the court.”
A step closer to packing the court?
Lee said he believes Biden’s proposed reforms are “all steps preparatory toward their desire to pack the Supreme Court.”
Lee clerked for Supreme Court Justice Samuel A. Alito, Jr., in 2006, after receiving a law degree at Brigham Young University. Last year, Lee published a book, “Saving Nine,” on Democratic proposals to increase the number of justices on the Supreme Court.
The last time an attempt was made to expand the court was when Democratic President Franklin D. Roosevelt submitted a plan to increase the number of justices in 1937. While the effort failed, “It appears to have scared the court into shifting its entire approach to interpreting the Constitution,” Lee said.
“These things can cause real harm,” Lee said.