Biden-Harris promote Supreme Court reform!

July 30, 2024

At long last! President Biden announced proposals for significant reforms to the Supreme Court, and presumptive nominee Kamala Harris immediately endorsed those reforms! President Biden has also proposed a constitutional amendment to reverse the Supreme Court’s decision in Trump v. US that granted extra-constitutional immunity to presidents after they leave office.

Although passing these reforms depends on the outcome of the 2024 election and the successful defense of the proposed laws in the courts, President Biden and V.P. Harris have changed the framework for discussing the Supreme Court. The question is now, “When?,” not “If?”

It has been a long and uncertain road to this point, but the Supreme Court’s stream of lawless decisions issued by a conflicted and hyper-partisan bench has proved too much for the American people. In proposing the reforms and constitutional amendment now, President Biden has ensured that the Supreme Court is on the ballot in 2024.

President Biden authored an op-ed in the Washington Post that explains his proposals. See Opinion  Joe Biden: My plan to reform the Supreme Court and ensure no president is above the law. (This article is accessible to all.) I hope you will take the time to read the entire op-ed.

President Biden places the ethics scandals at the Court front-and-center in his proposal:

[T] he court is mired in a crisis of ethics. Scandals involving several justices have caused the public to question the court’s fairness and independence, which are essential to faithfully carrying out its mission of equal justice under the law. [¶]

What is happening now is not normal, and it undermines the public’s confidence in the court’s decisions, including those impacting personal freedoms. We now stand in a breach.

President Biden has proposed three reforms:

1.    A constitutional amendment that would provide that there is no immunity for crimes a former president committed while in office

2.    A binding code of ethics

3.    Eighteen-year term limits (A president would appoint a new justice every two years, who would serve for 18 years).

Some commentators welcomed the proposals as a “practical way forward” that could garner support for passage after the 2024 election. See Politico, Democrats May Have a Real Chance to Reform the Supreme Court. President Biden’s proposal omitted enlarging the Court, a proposal that the Politico article described as an unpopular outlier not likely to gain legislative support.

Each proposal faces difficulties in gaining passage.

As to the constitutional amendment abolishing presidential immunity, Ian Millhiser in Vox reviewed the historical challenges faced by earlier proposed amendments, including the ERA and a proposal to ban child labor. (To date, neither has passed.) An amendment requires approval by a 2/3 supermajority in both chambers of Congress and ratification by 3/4 of the states (38 states). That is a tall order, indeed. But it won’t happen if we don’t try. And Republican states may be more supportive of such an amendment if they perceive that a Democratic president—like Kamala Harris—is too powerful.

The binding ethics code is plainly constitutional because the Constitution grants Congress the authority to create “exceptions” and impose “regulations” on the Court’s exercise of appellate jurisdiction. But the plain words of the Constitution haven’t prevented Justice Alito from taking the position that Congress is constitutionally prohibited from imposing regulations on the Court. Alito should lose, but it will be a fight.

As to the term limits, there will be a fight over whether the Constitution’s grant of life tenure to judges—subject to good behavior—permits term limits. Some constitutional scholars (including Professor Laurence Tribe) believe that term limits are permissible in the absence of a constitutional amendment, while others disagree. The Supreme Court would likely decide this issue.

One reform not suggested by President Biden is enlarging the Court. That path would not be subject to constitutional challenge and would require only a majority vote in both chambers of Congress (and a carve-out to the filibuster, which requires only 51 votes in the Senate). But for reasons that escape me, many politicians and observers view the least legally objectionable pathway as the most radical. Nonetheless, Senator Edward Markey of Massachusetts has proposed legislation to enlarge the Supreme Court to thirteen justices. See  Democracy Docket, ‘We Must Expand the Court:’ Sen. Markey, Advocates Call for Adding 4 SCOTUS Seats.

Oddly, in an interview with Laura Ingraham on Monday, Trump criticized President Biden’s proposal, claiming that Biden “wants to pack the Court.” Laura Ingraham responded, “That’s not in Biden’s proposal.”

Regardless of the way forward, reforming the Supreme Court is now on the table with the support of President Biden, Vice President Harris, and leading Democrats in Congress. It will happen—if only because the current reactionary majority will continue to curtail the rights and liberties of all Americans. It is only a matter of time—and it is up to us. We must all vote as if Supreme Court reform is on the ballot in 2024—because it is!

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Kamala Harris continues to challenge Trump / Vance directly and vigorously

On Monday, an Iowa six-week abortion ban went into effect. At a campaign rally, V.P. Kamala Harris repeatedly referred to legislation restricting reproductive liberty in the states as “Trump abortion bans.” See WSJ, Harris Puts Abortion, a Weakness for Trump, at Center of Campaign. As noted in the WSJ article, President Biden was reluctant to say the word “abortion,” while Kamala Harris is a “fighter” on the issue who is willing to urge voters to “stop Donald Trump’s extreme abortion bans.”

V.P. Harris also posted a video on YouTube condemning the Iowa abortion ban and promising to sign legislation to protect the right to abortion nationally. See YouTube, Vice President Harris on Trump's Abortion Ban in Iowa | Harris 2024.

Some (most?) women sensed President Biden’s discomfort on the issue and are responding positively to Kamala Harris’s strong support for access to abortions and reproductive healthcare for all women in the US. Harris’s approach resonates with many women in America who felt that President Biden was a reluctant advocate for abortion rights, even though President Biden and Kamala Harris support the same policies.

The Harris Campaign continues to go after Trump and Vance with lightning speed and full force. Within hours of JD Vance removing his absolutist abortion stance from his website, the Harris HQ Twitter feed posted Vance’s now-deleted position with the comment, “Weird that Vance just deleted this from his website.”

The Harris campaign also posted a quick reply to Trump's claim on Monday that the Biden-Harris record on crime was “terrible.” The Harris campaign posted the following:

Our opponent Donald Trump is a criminal.

• Migrants were more likely to be released after a border arrest under President Trump than under the Biden-Harris administration.

• As president, Donald Trump oversaw the largest single-year spike in the murder rate in more than a century.

• As president, Trump proposed a $400 million cut to local law enforcement funding.

• Trump has demanded the defunding of federal law enforcement, while proposing using the FBI and Justice Department to go after his political enemies.

• JD Vance said, "I hate the police."

The Harris Campaign is also amplifying a clip from Trump's interview with Laura Ingraham that included this exchange:

Ingraham: Why not debate Kamala Harris?

Trump: Because everyone already knows everything

Ingraham: They’re saying you’re afraid of debating her

Trump: I’m leading in the polls

Can you smell the fear? It is not true that Trump is leading in the polls. The race has tightened considerably, with Kamala Harris making up persistent deficits posted by President Biden. The race remains close, within the margin of error in many polls, but the trends all favor Kamala Harris. She has the momentum, and Trump and Vance are on the defensive.

So, if you are feeling good about Kamala Harris’s candidacy, you should be. After a whole week as the presumptive nominee, she continues to have the Trump campaign on its back foot. And the first three days of this week will feature massive online fundraisers and strategy meetings with hundreds of thousands of volunteers!

I invite readers who attend(ed) any of the online meetings to post your observations in the Comment section.

While we have reason to be hopeful, we have no reason to be complacent. We must beat Trump by a wide margin to remove all doubt and opportunity for election interference by Trump or the Supreme Court. (See Concluding Thoughts.)

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Opportunities for Reader engagement

I usually limit opportunities for reader engagement to two events to give each organization a fair opportunity to promote its event. But things are moving so quickly that I will be expanding this section of the newsletter as needed over the next several days. Please peruse each of the opportunities; there is a lot going on and plenty of ways to get involved!

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Big Tent USA / July 30

On July 30th at 12:00 p.m. Eastern BigTentUSA is honored to welcome Mandara Meyers, Chief Programs officer of The States Project , along with Senior Manager of Recruitment, Giving Circles, Tia Howard. 

“The States Project” is a pivotal national organization dedicated to highlighting the critical role of state legislatures in shaping our communities. The discussion will focus on both electoral and policy work as well as giving circles in order to ensure fair elections, reproductive rights, public education and foster collaboration among state lawmakers. In 2024, they are focusing their efforts on AZ, KS, MI, MN, NV, NH, NC, PA, and WI.

As the threat of authoritarianism increases, states are the key defenders of our democracy.

Please use link  to register!  

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National Organizing Call with Vice President Kamala Harris, July 30

When: Tuesday, July 30 at 7:15 p.m. Eastern.  

Join Vice President Harris and thousands of supporters across the country for a National Organizing Call after the Vice President steps off the stage in Georgia and the biggest campaign event this year. Hear directly from the Vice President about what’s at stake, the freedoms we’re fighting for, and how you can help us win the next 98 days.

Register here: National Organizing Call w/ Vice President Harris · The Democratic National Committee (democrats.org)

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The Resilience Initiative Giving Circle invites all Giving Circles from The States Project to join with David Plouffe on August 1

When: Thursday, August 1, at 10pm ET/ 7pm PT

Join a Zoom with Resilience Initiative for a special call with David Plouffe, Democratic Strategist & Former Campaign Manager for Barack Obama, to learn how you can help build power in state legislatures. David will help us regain our focus, regroup, and re-energize. David has kindly agreed to join us to share his thoughts and take your questions.

We will also discuss how, no matter who wins the presidency, state legislatures will be the ones to pass the policies that either defend or destroy our democracy, safeguard or endanger our individual liberties, and ultimately impact the lives of millions for better or worse. So even if the presidential race feels out of our control, there is still time to channel that energy into shaping state legislatures, where real change can happen.

Register here: Refocus with Obama's campaign manager, David Plouffe

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Movement Voter Project

Please join the effort to STOP the MAGA takeover and usher in a new Progressive era by joining our virtual fundraiser in support of the Movement PAC (MVP) on Aug 4, 7-8 PM ET.  Hear about MVP’s winning strategy and about the importance of grassroots organizing from our Special Guest Congressman Jim McGovern.

MVP is a national organization that funds grassroots groups all over the country with special focus on swing states.  Kamala Harris' candidacy has unleashed an unprecedented surge of excitement all across the country and the momentum is with us.  The outpouring of funds for Harris is terrific, but the grassroots groups MVP supports have funding gaps. 

Our job now is to raise as much money as we can to fund the groups that are working every day to mobilize the hardest-to-reach voters in every critical state and district.   All funds go directly to the grassroots groups who have demonstrated that they are best positioned to get out the vote to win in November --and we now may even have the possibility to win big, ushering in a progressive decade!  

REGISTER  here and if you can’t attend, DONATE here.

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Swing Left West Valley, August 4 with LA Mayor Karen Bass

Sunday, August 4, from 5:00 p.m. to 7:00 p.m Pacific at private residence in San Fernando Valley, CA.

Swing Left West Valley will welcome Mayor Karen Bass to Swing Left Summer Sundays - a weekly letter/postcard writing series featuring excited guest speakers! We will have yummy food and wine to enjoy as we write Vote Forward letters and campaign postcards during the event. Free to attend. Kids are welcome!

Sign Up Link: Swing Left Summer Sundays with Mayor Karen Bass

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Concluding Thoughts

Over the weekend and on Monday, I received a batch of emails from readers worried that Republican state legislatures will “refuse to certify” the election results in their states, forcing the election to the House. While we shouldn’t put anything past Trump or his supporters, I think the notion of state legislatures intervening in the 2024 election is inconsistent with the reforms in the Electoral Count Reform Act of 2022.

I don’t have time tonight to discuss the ECRA in detail, but I want to make two observations. First, ten days ago most Democrats were worried that Joe Biden would lose the presidential election. Today, many are worried that Kamala Harris will win the election, but Republican legislatures will steal the election. So, let’s recognize that this newest worry is not one that was front and center ten days ago. That is good.

The complete answer to the worry of Republican legislative interference is to ensure a landslide victory that does not depend on a single state (or two or three). The larger the winning margin by Kamala Harris, the less likely it will be that Republicans will even attempt to interfere in the results. So, let’s put our energies into ensuring that Kamala Harris wins by a large margin. That is what we can do. And then we will have to depend on the lawyers.

We know with 100% certainty that Republicans will file lawsuits to challenge the results. They filed 60 such suits in 2020, and there is no reason to assume they will be less aggressive in 2024.

However, the changes in the Electoral Count Reform Act are significant. At the highest level, the Act provides (a) that the electors are chosen on Election Day according to the laws in effect before Election Day; (b) the “state’s Executive” issues a “certificate of ascertainment” that identifies the winning slate of electors and notifies the National Archive and Congress; (c) the electors meet and vote; and (d) the electors notify the National Archive and Congress of their votes.

The Act further provides for an expedited hearing and Supreme Court review to any challenge to the certificate of ascertainment or the vote of the electors. The Act provides that the challenges must be resolved in time for the count of the electoral ballots by Congress on January 6.

What is notably missing from the above procedure is any role for state legislatures after the establishment of voting laws prior to Election Day. (It is possible that in some states, the “state Executive” is the state legislature; but I could find nothing to clarify that issue.)

Here’s my point: Even if state legislatures could delay the certification, the Electoral Count Reform Act provides a mechanism for judicial review and resolution in time for the count of electoral ballots by Congress in the ordinary course.

Of course, anything is possible, but if anyone tells you that state legislatures will refuse to certify the election results, the first question they should answer is how that can happen given the provisions of the Electoral Count Reform Act and why they think the courts will not enforce the provisions of the Act.

This is a complicated question, and I will defer to election law experts on the answer. I do know that Congress tried to fill in the gaps that were exploited in 2020. Again, the most important thing we can do is to give a large margin to Kamala Harris so the opportunities for mischief and corruption decrease. Let’s focus on doing our job—which will make it easier for lawyers to defend Kamala Harris’s victory!

My wife and I are on “overnight” babysitting duty, so there is no astronomy picture tonight.

Talk to you tomorrow!