Steve Vladeck's Reply to Biden's SCOTUS Reform Proposals (Head on Desk Gif)

Steve “Mr. Shadow Docket” Vladeck (also a Mets fan) is so upset about President Biden’s Supreme Court reform proposals that he released his response from its paywall. He provides that .gif as his general reaction. Right back at ya.

I respect him enough to single out his reply even with the “Someone Is Wrong On the Internet” rule in place. Sometimes a response is helpful in a general sense.

To put that into words: (1) these reforms have no chance of being adopted; (2) even if they’re adopted, they’re unlikely to be effective anytime soon; and (3) these reforms are coming way too late—in July of a presidential election year—to do anything other than confirm everyone in their priors

Why wouldn’t ethics reform be adopted? He partially argues that an enforceable ethics code has constitutional problems. I question that. Anyway, he suggests an inspector general. Okay. So, that is a way to address ethics.

The last part is somewhat dumb. First, it makes sense to make Supreme Court reform an election issue. Second, whenever it was handed down, Republicans would attack it. For instance, he suggests congressional oversight. The Senate tried that. Not enough, but they tried. What happened? Cries of partisan witchhunt.

No reforms will happen “soon.” It will require Democratic control. Okay. There was a complaint that President Biden should have done more when the Presidential Commission on SCOTUS handed down its report. I was online promoting the commission’s potential. NO ONE took it seriously. The blame was shared.

I also understand that a lot was happening in 2021-2. COVID relief and a whole lot more. With a 50-50 Senate and a thin majority in the House. Supreme Court reform on top of that was a lot. At the very least, anyway, you can’t just complain about BIDEN here. Him leading with three popular issues also is sensible.

Vladeck notes an amendment (immunity) has no shot at passing. It’s a valid concern. He snarks “Why just one hopeless amendment,” basically.

Why? Because the rule of law is so important. He cites the partisan gerrymandering case. Congress has the power to regulate elections. Democrats have a big voting rights proposal in part covering that.

Trump v. U.S. cannot simply be addressed by legislation. This puts it in a special class even separate from the insurrection ruling that can potentially be addressed by congressional legislation (putting aside the ruling was totally bogus).

Term limits are a sensible policy. It has broad support. It will be very hard to pass them. It very well might require an amendment. But, you have to start somewhere.

Third, and perhaps most importantly, even at this late date, there doesn’t appear to be a theme to these reforms other than “Supreme Court bad.”

President Biden in his speech after stepping down from the race said Supreme Court reform was necessary for democracy. That’s a basic theme. The rule of law (immunity) is essential to democracy. Ethical institutions are necessary for democracy. Reasonably timed replacement of personnel is essential to democracy.

Meanwhile, those inclined to defend the Court at all costs and to push back against any and all reforms (no matter how constitutional, compelling, and necessary they may be), who would likely have had a hard time arguing against, e.g., docket reforms, an inspector general, budgetary accountability, and other more robust congressional oversight, have been given a tree full of low-hanging fruit to pick from instead.

This response warrants emphasis. I am reminded of concerns that court expansion will result in a Republican tit-for-tat and politicization of the judiciary. Oh. Now?

I will repeat that the inspector general is an ethics reform. Robust congressional oversight can be done without legislation. These proposals do not make docket reforms (important but technical, not what you lead with) less likely. Once you put reforms on the table, if anything, they should be more likely.

For instance, when term limits are discussed, and it is shown that they won’t do anything soon — which I wholeheartedly agree with, which is partially why I also support court expansion, which Vladeck worries will lead to partisan wars and a threat to the courts’ integrity. Again, only then, huh? — docket reforms can be addressed. They provide a way to restrain judges now.

Democrats (and Biden) have supported some actions related to the courts already. They want a national law to protect abortion rights. They want voting rights reform. They want criminal justice reforms. Senate Democrats already pushed ethics reform.

The latest set of Supreme Court reforms from Biden adds to the conversation. I am fine with critiquing them in some ways. Democrats did take too long to have a central message addressing the courts. How to go about it can be debated.

My response here is not that his criticisms (too late! not enough!) lack some force in certain cases. Nonetheless, they are also overblown, partially misplaced, and overly defeatist. Again, my general response is the same .gif he used.