The most recent example ofinvolution of jurisprudence that Biden wants to fight would be the granting of immunity to the president for what he has done in the exercise of his duties, seen as the premise of a non-proceeding against Trump for the accusation of having fomented the attack on Capitol Hill on January 6 2021.
The life mandate: safeguarding the independence of the judiciary or privilege of judges?
The Constitution of the United States provides that, after nomination by the president and confirmation by the Senate, the members of the Supreme Court, as well as all judges of the lower federal courts, remain in office for life.
It would seem to be the legacy of a monarchical tradition which, however, the country never knew after gaining independence from England in 1783. In reality, the law intends to safeguard theautonomy of judges, freeing them from any form of conditioning that could derive from the material need to maintain the seat and the salary linked to it.
When the Constitution was drafted in 1787 the guarantee was based on the assumption that the judges would carry out their function as figures Super partes and they would not have been the expression of well-defined party orientations. The Constitution didn't even provide for it the existence of parties themselves.
However, with the birth of parties already at the end of the eighteenth century, even judicial offices ended up undergoing a process of politicization. This outcome caused frequent tensions between the White House and the Supreme Court when the majority of its members were appointed by presidents of a party other than that of the chief executive in charge.
The backgrounds of John Adams, Thomas Jefferson and Abraham Lincoln
The problems began almost immediately. After losing the elections of 1800, federalist President John Adams, in the last days of his mandate, induced Congress to pass a law that reduced the number of Supreme Court justices from six, as there were at the time, to five.
In this way, when one of the members then in office died or resigned, his successor as president, the Republican-Democrat Thomas Jefferson who had just defeated him, would not have had the possibility of replacing him with someone of his own political orientation because there would not have been a vacancy in the highest federal court due to the fact that the seats had in the meantime been reduced to five. However, as soon as he took office in 1801, Jefferson did repeal the law wanted by Adams.
Three years later it was Jefferson who tried to change the composition of the Supreme Court to his advantage. In 1804 he accused Judge Samuel Chase of having contributed to issuing biased sentences because they were favorable to the Federalist party. To try to get rid of Chase, Jefferson pushed the House to impeach him.
However, the procedure of impeachment, which would have led to the removal of Chase, did not have the conclusion desired by Jefferson, since the president was unable to aggregate in the Senate the qualified majority of two-thirds of votes necessary to remove the judge.
In 1863 the Republican Abraham Lincoln asked Congress and obtained to increase the number of members of the Supreme Court from nine, as they had become to cope with an increase in the workload for the continental expansion of the United States, to ten.
He would thus have had the opportunity to nominate another member, consolidating his abolitionist positions and preventing the judges chosen by his democratic predecessors from invalidating the slave emancipation proclamation once the civil war was over.
The measure was revoked by Congress in 1866 and the number of judges was even reduced to seven. Following Lincoln's assassination in 1865, former Tennessee Democrat Andrew Johnson took over the White House, wanted by Lincoln as his deputy in the 1864 elections to demonstrate, through the choice of a Southern political figure, that it was not his intention to impose a punitive peace on the secessionist southern states now one step away from military defeat.
Congress, dominated by Republicans, did not want to give Johnson, suspected of Southern and pro-slavery sympathies, the possibility of appointing judges with this orientation, interfering with the integration of African Americans.
When the Republican Ulysses S. Grant, former chief of staff of the Northern army in the last period of the civil war, became president in 1869, the risk feared with Johnson was averted and the judges went back to nine with a law of Congress that is still in effect today.
Franklin D. Roosevelt's Stratagem
Democrat Franklin D. Roosevelt tried to change the 1869 measure. In 1937 he resorted to an expedient based again on changing the number of justices in an attempt to overcome a Supreme Court that was boycotting the New Deal.
Having taken office in 1933 after twelve years of Republican control of the White House, Roosevelt found himself faced with a majority of conservative judges, as appointed by his predecessors, who decreed theunconstitutionality of some laws launched for the country's economic recovery from the crisis that had been dragging on since 1929.
During his first term in the White House, Roosevelt did not have the opportunity to appoint any justices, in order to transform the jurisprudence of the Supreme Court. Therefore, interpreting his re-election by a large majority in 1936 as the popular will to proceed quickly with the full implementation of the New Deal, the president sought to change the composition of the Supreme Court in another way.
Under the pretext of an alleged slowdown in work due to the advanced age of its members, Roosevelt had Congress present a bill that would allow him to appoint a additional judge for any member who, upon reaching the age of 70, had not resigned, making way for someone younger and presumably more dynamic.
The proposal sparked a hornet's nest of controversy. The Supreme Court was considered by public opinion to be the guarantor of US democracy in an international context marked by the advent of totalitarian regimes (fascism in Italy, Stalinism in the Soviet Union and Nazism in Germany).
Roosevelt's plan was interpreted as an attack on the independence of the judiciary and as the desire to subjugate the highest federal court to the president's policies, whether right or wrong.
Thus – thanks also to the fact that the Chief Justice, Charles Evans Hughes, demonstrated that there had been no significant delays in the handling of the cases – the bill did not have the popular support that Roosevelt had expected and was allowed to lapse.
The lessons of the past and Biden's unrealistic proposal
Although with mixed success in achieving their goal, Adams, Lincoln, Congress in the second half of the 1860s, and Roosevelt identified solutions to transform the Supreme Court that were less unrealistic than the one outlined by Biden.
The Constitution does not establish how many judges there should be on the Supreme Court. In the past, their number was determined by ordinary laws that were approved by a simple majority of the House and Senate.
Instead, for cancel the life mandate it is necessary to amend the Constitution through a procedure that requires a qualified majority of two-thirds of the votes in both the House and the Senate as well as ratification by three-quarters of the fifty states of the Union.
At the moment the Democratic Party is in the minority in the House and can have no more than 51 votes out of 100 in the Senate, assuming that the 4 independents join the 47 Democrats. Since the passage of Barack Obama's health care reform in March 2010, members of Congress have tended to vote on the most significant provisions, such as a constitutional amendment, according to their party affiliation.
There are, therefore, no numbers to begin the process of the reform indicated by Biden, much less to implement it. Furthermore, the precedent of the inapplicability of the XXII Amendment, which limits the terms of office in the White House to two, to the president in office at the time of ratification, Harry S. Truman, would suggest that the current judges may not be subject to the modification presented by Biden of the Supreme Court, including the three nominated by Trump against whom the current owner of the Oval Office has long aimed his arrows.
Biden's proposal therefore appears to be little more than one found to try to increase the Democratic Party's seats in Congress, in the elections to be held coinciding with the presidential elections, attracting voters through the prospect of reaching a qualified majority in the House and Senate to amend the Constitution with a limit on the mandate of judges of the Supreme Court.
The risk, however, is that of a boomerang effect, because more moderate voters could see Biden's move as an attempt to in turn politicize the composition of the country's highest court, as he had already tried to do, without success. , Roosevelt in 1937.
Books:
Stefano Luconi, The race for the White House 2024. The election of the president of the United States from the primaries to beyond the vote on November 5, goWare, 2023, pp. 162, €14,25 paper edition, €6,99 Kindle edition
Stefano Luconi, US institutions from the drafting of the Constitution to Biden, 1787–2022, goWare, 2022, pp. 182, €12,35 paper edition, €6,99 Kindle edition
