UB law professor endorses Biden’s Supreme Court reforms

A School of Law expert on constitutional law and the Supreme Court says President Biden’s proposed court reforms could prevent a drift toward an authoritarian executive, protect separation of powers and restore judicial accountability.

Biden’s recently proposed reforms include a constitutional amendment stating that the Constitution does not confer immunity from criminal prosecution for acts committed by the president; 18-year term limits for Supreme Court justices; and a binding code of conduct for those justices.

The “challenge,” says Manoj Mate, professor in the School of Law, is the difficulty of amending the Constitution.

“The proposals to reform the Supreme Court are a response to recent decisions in which the court has overturned settled precedent protecting fundamental rights, including civil rights, voting rights and the right to abortion” says Mate, an expert in the areas of constitutional law, election law, and public law and judicial politics in U.S. and comparative contexts. 

“And more recently, the court in Trump v. United States held that the president has broad immunity from prosecution for criminal acts committed while president.”

Trump v. United States has been heavily criticized by scholars and commentators across the political spectrum for “failing to properly analyze the text, history and structure of the constitution,” according to Mate.

Collectively, these decisions and related developments have caused many observers and commentators to “sound the alarm that the court has entered a new phase of judicial aggrandizement.”

“In addition, the Biden reform plan also responds to recent examples of ethics scandals involving unreported gifts to certain justices,” he says.

Biden’s proposed code of conduct would require justices to “disclose gifts, refrain from public political activity and recuse themselves from cases in which they or their spouses have financial or other conflicts of interest.”

The stakes are exceedingly high, says Mate. The recent decision in Trump v. United States poses “an existential threat to U.S. democracy and separation of powers by creating a pathway to an authoritarian presidency that is above the law,” he says.

“These recent Supreme Court decisions have profound consequences for fundamental rights, separation of powers and the accountability of the executive branch. In addition, these developments raise serious concerns about an unaccountable imperial Supreme Court.

“These are sensible and common-sense reforms that would restore equilibrium to our system of separation of powers and the rule of law,” Mate says.

In discussing the reform plan, Mate highlights critiques and challenges facing the plan.

First, although some have suggested the plan represents a threat to judicial independence, the reforms do not amount to more far-reaching proposals that would have immediate impacts on the composition of the court or its powers, according to Mate.

“Biden’s plan is not a court-packing plan like the plan advanced by President Franklin D. Roosevelt in response to court decisions that invalidated key New Deal policies,” Mate says.

“Rather, the plan seeks to address and respond to recent court decisions and political developments that present existential threats to precedent and the rule of law, core fundamental rights and our system of separation of powers. In addition, the plan does not seek to restrict or curb the power or jurisdiction of the court in line with recent proposals.”

Second, Mate notes some of the challenges facing enactment and implementation of the plan.   

“The proposed binding code of conduct is a welcome step and would go a long way toward addressing conflicts of interest and perceived corruption by applying the same code that is binding on lower federal court judges to Supreme Court judges,” says Mate.

However, the other two proposals will be more difficult to enact, given they would likely require amending the Constitution.   

“It would require the enactment of constitutional amendments that would be very difficult to enact, given the high procedural hurdles for amendment, which requires a two-third vote in the House and Senate, and ratification by three-fourths of the states.

“While court packing proposals have been frowned on by some as an attack on judicial independence, a proposal to expand the court may be the only way to immediately address the threats posed by the court’s recent decision in Trump v. United States,” Mate says.

Mate recently joined UB Law from DePaul University College of Law, where he was the inaugural faculty director of the DePaul Racial Justice Initiative. He has also held visiting faculty or fellowship appointments at Harvard University, the University of California, Berkeley School of Law and the University of California, Irvine School of Law.