The country has gone 53 years without approving a constitutional amendment.
For the past 155 years, the Supreme Court of the United States has been regulated by the so-called Judiciary Act of 1869. Since then, there has only been one serious attempt to reform it, carried out by President Franklin Delano Roosevelt in 1937, which, although doomed to failure due to lack of support in Congress, ended up being unnecessary.
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This Monday, Joe Biden has resumed, as on other occasions, the path of Roosevelt by proposing a reform of the US Supreme Court, a judicial body that has unparalleled power and privileges in any other Western democracy, which this time also includes an extra element: a constitutional amendment that establishes that the president has no legal immunity after leaving office, in clear reference to the Court’s ruling that significantly hindered the prosecution of both alleged and convicted crimes of Trump.
And, like the 1937 reform, the 2024 one is stillborn. Congress, now, will not consider that proposal either. Even if the Senate’s Democratic majority leader, Chuck Schumer, decides to bring it up for debate, the Republican Party will block it thanks to their blocking minority.
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The proposal made sense until 8 days ago when Biden announced that he would not seek reelection, as it could at least galvanize the Democratic base. With Kamala Harris rising in the polls, it is very likely that it will remain a footnote in the campaign.
Biden’s plan, presented this Monday in an article in the Opinion section of the Washington Post -the ongoing war between the outgoing president and the New York Times continues, so the New York newspaper should not expect anything from this White House- has three elements. The first is to limit to 18 years the period of time a person can hold the office. The second, create an Ethical Code -something the Supreme Court lacks- whereby justices must publicly disclose gifts received, be prohibited from engaging in politics, and be required to recuse themselves from cases in which they or their spouses have conflicts of interest.
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The third element does not directly affect the Supreme Court, although it is a consequence of its actions when it exonerated Donald Trump from much of the criminal responsibility that, according to the Prosecutor’s Office, he had for his actions in attempting to steal the 2020 elections, which he lost to Joe Biden. To address this, Biden proposes a constitutional amendment that states that “the Constitution does not confer immunity from indictment, trial, or sentencing by virtue of having been president.”
The chances of this reform moving forward are zero. The United States has gone 53 years without approving a constitutional amendment because the requirements for ratification are enormous and, in a country where no one agrees on anything, make reforming the foundational law virtually impossible. Additionally, the two Supreme Court reforms – term limits and ethical code – are also unlikely to succeed due to Republican opposition.
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The reforms proposed by Biden are more of an attempt to appease the Democratic base, after the Supreme Court, where there are 6 Republican judges against three from the president’s party, has handed a series of victories to conservatives in the last quarter-century that have accelerated in the recent sessions with Trump’s immunity and several rulings that reinforce the power of corporations over regulators and workers.
To this have been added scandals. In the past year, the investigative website ProPublica revealed that one of the Republican justices on the Supreme Court, Clarence Thomas, received gifts worth millions of dollars from conservative billionaire Harlan Crow, while the New York Times uncovered that another judge of the same ideology, Samuel Alito, subscribes to the conspiracy theory that Biden stole the elections.
Thomas’s wife, Ginni, is also a prominent Trump supporter, who in 2020 sent text messages to then-President’s Chief of Staff, Mark Meadows, expressing her desire for “the Biden crime family, and their co-conspirators election fraudsters (elected officials, bureaucrats, social media censors, fake journalists, etc.) to be arrested and detained for election fraud right now and in the coming days and live in barges in Guantanamo until they are tried in military courts for sedition.” Neither Alito nor Thomas have recused themselves in the case regarding Biden’s immunity.
The power of the United States Supreme Court cannot be overstated.
Issues such as abortion, racial discrimination, who won the elections, when a former president can be indicted, the illegality of the right to secession (something Americans forget when supporting independence movements in other countries), and even whether a school magazine can publish news that a student’s parents have divorced, are not determined by laws passed by the Legislature and sanctioned by the Head of State, but by Court rulings, sometimes approved by a minimal difference of five votes to four.
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This is the consequence of an institutional system that was designed so that there were no political parties, but rather legislators who acted freely, but has ended up generating the emergence of partisan blocks incapable of reaching agreements on almost anything.
