Biden Calls for SCOTUS Ethics Reform - LER Bonus Content No. 16 (07.29.24)
A visit to the LBJ Presidential Library offered an ideal opportunity for Biden to call for reform. And these previously-unpublished documents from the LBJ archives show why.
Welcome
Welcome to your sixteenth installment of bonus content from the Legal Ethics Roundup. In addition to the free weekly roundup every Monday morning, I regularly post bonus content for paid subscribers. This material offers a deeper-dive into issues touched upon in the weekly roundup and sometimes cover breaking news that just can’t wait until Monday morning, like this week!
Here’s a preview of today’s bonus content, which includes previously-unpublished materials from the archives in the LBJ Presidential Library. (If you need a comp paid subscription to read this full bonus content post, let me know at legalethics@substack.com - no questions asked. Otherwise, thank you for reading and supporting this work!)
Today, President Joe Biden finally made it to the LBJ Presidential Library in Austin, Texas. His previously scheduled visit earlier in the month was pushed back after the assassination attempt on former President Donald Trump. The trip was supposed to be a stop on Biden’s presidential campaign trail during which he would recognize the 60th anniversary of the Civil Rights Act signed into law by President Lyndon Johnson. Instead, the visit marked a moment in history where Biden, like Johnson, decided not to seek a second term. No longer a candidate, Biden used the opportunity to focus on Supreme Court ethics.
Biden contrasted the expansion of civil rights during Johnson’s presidency with the contraction of rights by the Supreme Court in recent years, including voting (Shelby County) and reproductive health (Dobbs). He tied the expansion of presidential power through the immunity recently granted by the Supreme Court with a threat to civil liberties. (Read the full transcript of his speech here.)
Biden proposed three signature reforms, two of which encompass Supreme Court ethics, all couched in terms of reigning in unchecked power for the executive and the judiciary. From the White House Press Release:
President Biden believes that no one—neither the President nor the Supreme Court—is above the law.
In the face of this crisis of confidence in America’s democratic institutions, President Biden is calling for three bold reforms to restore trust and accountability:
No Immunity for Crimes a Former President Committed in Office: President Biden shares the Founders’ belief that the President’s power is limited—not absolute—and must ultimately reside with the people. He is calling for a constitutional amendment that makes clear no President is above the law or immune from prosecution for crimes committed while in office. This No One Is Above the Law Amendment will state that the Constitution does not confer any immunity from federal criminal indictment, trial, conviction, or sentencing by virtue of previously serving as President.
Term Limits for Supreme Court Justices: Congress approved term limits for the Presidency over 75 years ago, and President Biden believes they should do the same for the Supreme Court. The United States is the only major constitutional democracy that gives lifetime seats to its high court Justices. Term limits would help ensure that the Court’s membership changes with some regularity; make timing for Court nominations more predictable and less arbitrary; and reduce the chance that any single Presidency imposes undue influence for generations to come. President Biden supports a system in which the President would appoint a Justice every two years to spend eighteen years in active service on the Supreme Court.
Binding Code of Conduct for the Supreme Court: President Biden believes that Congress should pass binding, enforceable conduct and ethics rules that require Justices to disclose gifts, refrain from public political activity, and recuse themselves from cases in which they or their spouses have financial or other conflicts of interest. Supreme Court Justices should not be exempt from the enforceable code of conduct that applies to every other federal judge.
Read more here.
I doubt Biden spent any time digging through the LBJ archives like I did when I visited in 2016 and again in 2022. But, had he done so, Biden would have found plenty of material to offer context for his advocacy of Supreme Court reform, including correspondence about the appointment of Thurgood Marshall to the US Supreme Court and Constance Baker Motley to the US District Court for the Southern District of New York. President Johnson planted the seeds for what will now be a major part of Biden’s legacy. Did you know that Justice Ketanji Brown Jackson and Constance Baker Motley share birthdays? Jackson credits her as a role model and inspiration. And without the first Black woman on a federal district court, there never would have been a first Black woman on a federal court of appeals (that was Amalya Kearse — see Shortlisted: Women in the Shadows of the Supreme Court for more on her legacy) and there never would have been a first Black woman on the Supreme Court.
Here are some of the incredible documents I found digging through LBJ’s presidential papers that laid the foundation for Biden’s legacy.