WASHINGTON, DC — Vice President Kamala Harris on Monday echoed President Joe Biden’s call to fundamentally abolish the Supreme Court’s independence and destroy its status as an independent branch of government protected from political pressure. That specific feature is patently unconstitutional and can only be achieved by changing the Constitution itself. And conservative leaders are denouncing the very nature of the Biden-Harris plan.
of The Washington Post The paper published an editorial by Biden calling for three structural changes to the basic guarantees of American freedom enshrined in the Constitution’s separation of powers. And Kamala Harris, the new standard-bearer for the Democratic Party, has publicly endorsed Biden’s policies and made them an issue in the presidential election.
First, Biden has argued that Supreme Court justices should serve 18-year terms, with vacancies occurring every two years and filled by the incumbent president, eliminating the life tenure that has been granted to federal judges at all levels since the Constitution was ratified in 1789.
Such a law would be unconstitutional because the Constitution says all federal judges remain in office “for the duration of their good behavior.” Unless convicted of a felony, they remain in office until they retire or die in office.
Second, Biden called for the Supreme Court to follow “ethics rules” imposed by Congress. As we’ve already detailed, this is nothing less than “reverse court expansion.” Instead of adding more justices to the Supreme Court, Democrats are creating a list of rules that would periodically remove conservative justices from important cases, so that the liberal majority would make decisions that far-left politicians like Harris would agree with.
This is also unconstitutional. The Supreme Court was created by the Constitution, not Congress, and lawmakers cannot impose rules on it, just as judges cannot impose rules on the House and Senate. The lower courts are created by Congress and therefore regulated by Congress, but the Supreme Court is a branch of government equal to Congress.
Third, Biden wants to strip the president of his Supreme Court-granted immunity from criminal prosecution for official conduct. Trump vs. the United StatesTrump’s ruling has sparked outrage on the left, even though it merely formalizes something that most legal scholars, and certainly all presidents, have always assumed existed.
Ultimately, all three of these reforms would require constitutional amendments: the first two would abolish the Supreme Court’s status as an arm of government independent of political interference, while the third would weaken the presidential system by making future presidents fearful of being pursued for life by opposition prosecutors even after they leave office.
“The Supreme Court is clearly facing a crisis of credibility following a series of ethics scandals and decisions overturning long-standing precedents that have called into question its impartiality,” Harris wrote.
This sentence from Harris contains three verifiable falsehoods.
First, it’s only the left that questions the Supreme Court’s impartiality. Conservatives still lose many Supreme Court cases; the idea that the Court has a 6-3 conservative majority is a lie. But conservatives as a group aren’t criticizing the Supreme Court’s impartiality. And no polls are cited that show moderates question the Court’s impartiality.
Second, so-called “ethics scandals” have been manufactured by the Left to spawn gaslighting campaigns that claim that activities that meet the standards judges are held to are ethical violations, such as trips on a friend’s personal plane or boat being unreportable gifts.
And third, overturning precedent has always been and remains rare, and Harris is only saying it because she expects it will not be fact-checked.
“Conservative justices have never ruled in a major case that would surprise anyone, so let’s stop pretending this is about undue influence,” said Leonard Leo, co-president of the Federalist Society, adding that until Democrats want a “blanket ethical ban” on gifts to all three branches of the federal government, “let’s all be honest and admit this is a campaign to destroy courts we don’t agree with.”
“This is a destructive and dangerous proposal. [the Supreme] “This proposal is designed to sideline Supreme Court justices,” wrote Mark Paoletta, a key figure in the confirmation of Supreme Court justices under Republican presidents for decades. “It will undermine the Supreme Court’s independence.” [Clarence] Thomas first, then [Samuel] Alito & [Chief Justice John] “Roberts, this is a violation of the separation of powers and is unconstitutional.”
“This is a horrific attack on constitutional freedoms,” added former Ambassador Ken Blackwell, president of the Conservative Action Project. “The far-left is determined to destroy the branch of government it does not control, and Kamala Harris has made it clear that she will escalate that attack if given the power of the presidency.”
The Supreme Court was an issue that swung in Donald Trump’s favor in the 2016 election, and this week’s proposal signals that Biden and Harris are seeking to make it a central issue in 2024, betting that the outcome will be different this time around as both sides work to position the issue for voters.
Breitbart News senior legal contributor Ken Kurkowski is a former White House and Justice Department lawyer. Follow us on X (formerly Twitter) Kenkrukowski.
