Note from Elie 8/02: Joe Biden’s Last Stand: Supreme Court Reform 11:56

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Hey everyone, Ellie here. Happy Friday morning. Thanks for checking out our newly branded or rebranded Feed the Council, which features my pieces on Friday mornings and throughout the week. You'll hear from other cafe contributors, Joyce Vance, Barb McQuaid, Asha Rangappa, Rachel Barco, and other brilliant...

contributors. Before we get to this week's topic, I want to talk about a completely separate story that just broke yesterday. And that's the fact that military prosecutors have reached a plea deal with Khalid Sheikh Mohammed and two other Guantanamo detainees. Now, important to understand,

This is not happening in what we call our civilian criminal courts, the regular criminal courts that we have here in the United States. This is part of a military prosecution. They are all being held at Guantanamo. And the deal that's been reached is essentially that they will all plead guilty to thousands of counts of murder relating, of course, to 9-11. And they will be given bail.

Life sentences, but spared the death penalty. Of course, this will be controversial. Of course, we've already heard from victims' families who disprove of this. I will leave it to you. Maybe at some point in the future, we'll get into whether this is a right and just outcome or not. This will essentially conclude, though, a really important piece of our legal and political history here in the United States. Khalid Sheikh Mohammed, sometimes you'll see him described as the mastermind of 9-11. I don't like that phrasing. Gives him too much credit.

He's a terrorist. He's a conspirator. He helped put together the worst attack in this nation's history. I won't sermonize any further. We all remember it.

There was a really interesting debate that was much hotter at the time. Khalid Sheikh Mohammed and the others were captured in the early 2000s, I think, oh, three or four. And there was a debate about what do we do with these guys? And the decision was made. We hold them in this military facility, which was constructed at Guantanamo off site of the United States itself, intentionally for legal and constitutional reasons.

But there was a really important moment in 2009, shortly after Barack Obama becomes president, Eric Holder becomes attorney general, Preet Bharara becomes our US attorney in the Southern District of New York. And it was announced by DOJ, by the attorney general, that Khalid Sheikh Mohammed would be transferred and tried in civilian criminal court, the same criminal courts where we see proceedings every day, the Southern District of New York. That was an official announcement. I think it was the right move

Legally, constitutionally, politically. I think many of my colleagues at DOJ felt the same way. When that announcement was made, I remember feeling, seeing the email from Preet and feeling this surge of pride that we would be handling this trial. I wasn't going to be doing it. My colleagues, my more senior colleagues were, but I thought it was the right way to handle it.

And it's a long story here. It's been reported on, but essentially there was mass political rejection of that, resistance to that. The resistance sort of ranged from, well, we can't handle this case safely, this trial safely. I disagree with that. Why should we give Khalid Sheikh Mohammed the civil liberties that our courts afford? I would reject that respectfully as well. I do think our civil liberties are strong enough to withhold that kind of a trial.

And for whatever variety of political reasons, ultimately, the decision was changed. It was taken back. And here we are 20 some years after Khalid Sheikh Mohammed's capture. And finally, his case is just about over. He will spend the rest of his life

in custody. He will not be put to death. Again, I'm not going to get onto the sort of political and legal sermonizing around it. I just think it's an interesting chapter in our nation's history and worth a bit of reflection. Okay, enough off topic. Back to the topic of the week, the U.S. Supreme Court, also weighty and important and interesting. So I hope you enjoy this week's piece. As always, send us your thoughts, questions, and comments to letters at cafe.com.

Joe Biden's not running anymore, but he's still got six months left in the most powerful office on earth. The outgoing president, with spirited support from vice president and soon-to-be presidential nominee Kamala Harris, announced this week that he will pursue an ambitious endgame initiative, Supreme Court reform.

Biden's proposal mostly advances important goals that have slipped public notice for too long. He's doing a service to shine a light on the Supreme Court, which increasingly has seized power for itself and resisted efforts to impose accountability. But the reform package at times wanders into fantasy land, and it faces virtually insurmountable practical obstacles. It's a well-intentioned showpiece, dead on arrival, whether Biden knows it or not, and I suspect he does.

though it could lead eventually to sorely needed incremental progress. Now, before we get to the current proposal, let's remember that Biden has a history of saying things about the court that he has no ability or perhaps intention to accomplish. During the 2020 presidential campaign, he was beset by questions about whether he would seek to expand the size of the Supreme Court. Biden found himself caught between a political instinct to appease the far left on the one hand and

and reality on the other, including his own unequivocal 2019 statement that, quote, no, I'm not prepared to go on and try to pack the court because we'll rue the day, end quote.

When he took office a few months later, Biden did what any skilled politician does to pay lip service to an idea while also killing it. He farmed it out to a commission. Predictably, the grandiosely named Presidential Commission on the Supreme Court of the United States churned out a few hundred pages of thoughtful but noncommittal brainstorming about potential court reforms. Nobody cared. Nobody did anything. And the report now resides comfortably in an online retirement home. And I link to it in my piece.

Biden has wisely omitted from his new reform package any far-fetched plan to expand and pack the court. But the proposal does have its own fantastical, self-defeating centerpiece, a constitutional amendment reversing the Supreme Court's recent presidential immunity ruling.

This part of the plan channels frustration from exasperated liberals who confidently but delusionally foresaw a major Trump trial occupying the entire 2024 campaign stretch run, culminating in a dramatic election eve verdict. In the process, Biden overstates the court's actual ruling. He claims that now, quote, there are virtually no limits on what a president can do, end quote.

Yet the Manhattan District Attorney's Office recently argued that the court's opinion does not have such sweeping effect and should not impact the hush money case against Donald Trump at all. Trump's other prosecutors surely will make the same arguments in the coming months.

Now, reasonable minds can differ about the wisdom of stripping the presidency of its shiny new prosecutorial shield, but it's a practical dead letter. A constitutional amendment requires two-thirds of the House. Good luck with that. Plus two-thirds of the Senate. Forget about it. And then finally, on top of that, three-fourths of the states. You get the picture. Alternatively, we can convene a brand new constitutional convention. I wouldn't recommend buying advanced tickets.

Now, as we move to the next pillar of Biden's proposal, we reenter the realm of reality. The president reportedly wants to impose 18-year term limits on Supreme Court justices. As a policy matter, I'm with Biden on this one, as is over 60% of the American public, including a majority of Republicans. I'm perfectly fine with giving justices an entire generation, but not necessarily forever, to wield their power and make their mark.

But again, we face daunting procedural hurdles. At first glance, the term limit proposal seems to call for another constitutional amendment. Article 3 guarantees life tenure to all federal judges who can serve until resignation, impeachment, or death.

Now, the workaround here is that the justices won't be kicked off the bench altogether after 18 years. They'll just be demoted to lower federal appellate and trial courts. Hey, the Constitution says you get to be a federal judge for life, but it doesn't specify on what court. Now, I'd assume any such policy would only apply prospectively, though it is amusing to think about the poor guy who has to inform Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito, all of whom have been on the court for more than 18 years.

that they'll be heading down to the district court to do bail hearings and take pleas on felon in possession firearms cases. So, given the impossibility of an amendment, Congress would likely need to enact term limits through legislation. First, it'd be tough, though not impossible, given the aforementioned polling data, to get a proposal through the House and the Senate and then the president's signature. Second, legislation enacting term limits would likely be challenged legally and could land for final review before checking notes,

the U.S. Supreme Court itself. Bit of a conundrum there. The justices would have a smidge of institutional self-interest on this one, and it would surprise nobody if they found that term limits conflicted with the life tenure provision of Article 3. Still, it's a fight worth having. The only alternative is the status quo.

Finally, Biden endorses a Supreme Court code of ethics carrying some meaningful enforcement mechanism. Now you may be thinking, didn't the justices recently impose sparkly new ethics rules on themselves? They did, and those rules have proven to be precisely as toothless as immediately assessed by essentially every sentient observer. Put it this way. If you word search the court's new ethics rules, you'll get 53 hits on the word should and only six on the word must

none of which actually impose mandatory duties on the justices. And if you word search penalty, enforce, consequence, discipline, suspend, and fine, you'll come up dead empty.

We come again to that pesky but vital practical question. How do we enact a real code of ethics? Again, we're likely in the realm of legislation here. But again, we face questions about whether passage of a new ethics code through Congress and the president is politically feasible. Obviously, it'll depend to an extent on who controls those political bodies. And even if such legislation does pass, it could face constitutional challenge, separation of powers or some such issue.

That would result in the Supreme Court itself deciding whether to accept ratcheted up ethics rules imposed on it by Congress. I have a guess how that might come out.

I don't mean to sound defeatist here. Even if Biden's proposal will never reach full fruition, he might succeed in getting some portion of it enacted eventually, likely after he's left office, if ever. The Supreme Court is badly in need of a kick in the ass, and Congress seems largely disinterested in messing with the occupants of the Marble Palace across the street.

But it's a healthy exercise to have these conversations, even if they're unlikely to result in immediate sweeping change. So give Biden credit for raising the issue as he heads towards his exit. As the boss, the one who reigns forever, put it 40 years ago, you can't start a fire without a spark. You can't start a fire without a spark. Thanks for listening, everyone. Stay safe and stay informed. Even if we're just dancing in.