President Joe Biden's sweeping proposals to change the U.S. Supreme Court and presidential immunity are being met with a variety of opinions. Brad Jacob, a Regent University professor and legal expert, detailed Biden's plans for CBN News, explaining his view the president's proposals are rooted in what he believes to be political "discontent." "The primary thing that's going on here is discontent within the political left with recent decisions of the Supreme Court," he said. "And that's nothing new. I mean, throughout our nation's history, if people believe the Supreme Court has messed something up, people try to figure out ways to deal with this."
Constitutional amendments have been aimed at changing Supreme Court rulings in the past, but Jacob said Biden's current push concerns the court's structure. In recent years, some progressives have pushed for court-packing, which is "adding more justices so that the current president could put on a bunch of people who agree with his viewpoint and overrule the other side." But the current proposal from Biden deals, instead, with term limits. "Primarily, what's going on, there [are] folks who believe they're losing in the Supreme Court today [and they] want to change outcomes, which honestly, is not the correct way to approach this," Jacob said. "The Supreme Court is not supposed to be a partisan political animal. The justices are supposed to decide cases correctly under the law."
The problem with trying to change the court's structure, he said, is that the other side will simply try to do the same thing when given the opportunity.
"In reality, it's very hard to remove a justice from the court," Jacob said. "The idea of that was to let the judiciary be independent, to keep it free from partisan politics." Jacob went on to provide the strongest arguments for and against term limits. As for the former, he said some presidents don't appoint any justices while others get to appoint a number of them. The imbalance can sometimes be evident in the court's composition. "I think there's a worthwhile conversation about something like 18-year term limits for justices... you'd have to stagger it starting out, but then every two years, one justice would reach the end of his or her term and have to leave the court," he said. "And every president, unless someone resigns or dies early, every president would nominate exactly two Supreme Court justices in a four-year term."
To the newsmakers podcast, I'm Billie Hollowell, and this is a show where we go behind the headlines every day to bring you an interview with a pastor, entertainer, politician, or other notable news figure. And this is a show, again, it's daily, but it's based on our weekly TV show, which is also called Newsmakers. You can watch it on the CBN News channel and also on our YouTube page. And on this show, every day, we dive deep. It's a little more longer form with one of the people who you will often see on our newsmakers show or across the CBN News platforms. On today's newsmakers, President Joe Biden's sweeping proposal to change the US Supreme Court and presidential immunity are being met with a variety of opinions. Today we talk with Brad Jacob, a region university professor and legal expert who breaks it all down. Here is Brad Jacob. So there's a lot of discussion right now about Supreme Court reform. What do you think is motivating this massive attempt by President Joe Biden to reform the court? Well, the primary thing that's going on here is discontent within the political left with recent decisions of the Supreme Court. And that's nothing new. I mean, throughout our nation's history, if people believe the Supreme Court has messed something up, people try to figure out ways to deal with this. There have been constitutional amendments changing decisions that were made by the Supreme Court. That's happened. And that's one of President Biden's issues here. But when you talk about the structure of the court itself, and that would include court packing, adding more justices so that the current president could put on a bunch of people who agree with his viewpoint and overrule the other side, or you're talking about term limits, primarily what's going on there is the folks who believe they're losing in the Supreme Court today want to change outcomes, which honestly is not the correct way to approach this. The Supreme Court is not supposed to be a partisan political animal. The justices are supposed to decide cases correctly under the law. And when you discover that the law is not working for your side, trying to just change the court to get people who will vote the way you want them to is a really bad answer. Because all you're doing is opening yourself up to the other side doing the same thing in four years or whenever they get in power. Term limits are a little bit of a different question. Our original Constitution had no term limits. Term limits for the president were added by amendment after Franklin Roosevelt was elected for a fourth term. Up until then, every president had followed George Washington's lead and stepped down after two. We don't have term limits for members of the House and the Senate, although that was a big part of the Newt Gingrich contract with America in 1994 when Republicans took control of Congress. They were going to do term limits, but they didn't. Supreme Court justices have life tenure. Once they're on the court, they're there. There's only three ways. Someone leaves the United States Supreme Court. They die, they resign, or they are impeached and convicted, which has never happened to a Supreme Court justice. There was one who was impeached, but he wasn't convicted. In reality, it's very hard to remove a justice from the court. The idea of that was to let the judiciary be independent, to keep it free from partisan politics. The strongest argument in terms of term limits is that right now the transition of the court is serendipitous. Some presidents serve for quite a while and don't get to appoint any justices. Some presidents serve for a relatively short time and appoint a bunch of Supreme Court justices because there's no regularity to that process. I think there's a worthwhile conversation about something like 18-year term limits for justices so that you'd have to stagger it starting out, but then every two years, one justice would reach the end of his or her term and have to leave the court. Every president, unless someone resigns or dies early, every president would nominate exactly two Supreme Court justices in a four-year term. There's reasonable arguments for that. The strongest argument for it is sometimes justices like presidents may serve too long and co-pass their capacity. When I started working in Washington in the late '80s around 1990, Thurgood Marshall, who had been one of the most brilliant lawyers in our nation's history, was still on the court and he clearly had little left in the tank. He would fall asleep during oral arguments. He stayed too long. He was on the court too long. Ruth Bader Ginsburg was still very vigorous right up to the end of her term, even though she was very old. People are different. People age differently, but the idea of let's not have someone stay on the court for 40, 50 years. Let's have a turnover so while they're still at their best, someone else comes in and then they can go and give speeches and make lots of money or get a tenured professorship or do something for the rest of their days, it would require a constitutional amendment to actually put in term limits on a justice. How hard is that? I mean, how easy is it, let's say, to get a constitutional amendment passed at this point? There is absolutely no chance in God's green earth of passing a constitutional amendment in today's world. We are way too polarized politically. You have to have two-thirds of the House of Representatives and two-thirds of the Senate, and those two-thirds numbers are sufficiently large that the minority party almost always has more than a third of the House or the Senate. So you only get through Congress if there's bipartisan support for the amendment. Then you need three-fourths, 38 out of 50 states would have to ratify the amendment. And again, in today's world of blue states, red states, purple states, the idea of reaching that level of consensus, you could take the most obvious constitutional amendment in the world. And you wouldn't happen because if Republicans introduced it, Democrats would vote against and if Democrats introduced it, Republicans would vote against, constitutional amendment can't happen in today's world. Now you might be able to do something like term limits by statute because Congress couldn't end the term of Supreme Court justices, but it might be able to do something like dividing active versus senior status, and that after 18 years, a justice moves into senior status and they don't sit on current cases. They still get their full salary and all their benefits and all of that, but they don't actually sit on cases maybe unless someone has to recuse. Scholars differ, but at least you might be able to do that by statute. Here's one other aspect of this, though. The downside, the biggest downside of term limits for Supreme Court justices is if every president is going to be elected with the knowledge that he or she will appoint to Supreme Court justices, people are going to want to know who they're going to be. And presidential campaigns will now become president campaigns for president, vice president, and to justices. They're going to name people upfront and say, here are my candidates, and it's going to add a level of partisanship to the composition of the court that'll be way worse. That's what we have today. So those two things are intention. It could become even more political potentially when, and you remember when Trump obviously put his longer list out of potential candidates for the Supreme Court back in 2016, knowing that this was going to be something that people were potentially voting on, that made big waves at the time because it definitely told people, okay, here are people who are going to come from the perspective that obviously he would want them to come from. So potentially you end up in a more polarized court situation. You really do. I mean, you would end up with an extremely polarized court situation. And people have to balance. I think we all may be in determining in deciding how to approach this situation. We have to say, how do we balance the serendipity of appointments in the current system that sometimes you get two, three, four, bang, bang, bang, right in a row. And sometimes you go 15 years without any change in personnel in the court. How do you balance that? And the fact that justices sometimes overstay their prime capacity against the problem of making it even more political than it already is. And I think that's a worthwhile conversation to have. But I do think at this point, President Biden and the Democrats aren't really thinking through it on that level. They are much more motivated by, we don't like Trump's appointments. We don't like the current Republican appointed majority of the Supreme Court. And we want to change that. We want to get more people who would agree with us. I think that's the primary driving force here. Yeah. I want to talk about this ethics code because it is interesting, obviously, vacations and things that might go on that aren't disclosed when it comes to the Supreme Court and the justices. You've even had, I believe at least two justices who have presided over gay weddings and there were questions of when a court case comes up with same sex marriage, should they recuse themselves? So there's all these different questions, but when it comes to the ethics of taking gifts and that sort of thing, one thing that Biden is calling for is an ethics code. Let's talk a little bit about that. If this were to happen, if there were an ethics code, how different would that make the court from, let's say, the legislative branch of government? What comes into play here is separation of powers issues and how much control Congress and the president can have over the way the Supreme Court does its business. I generally think that a good Supreme Court ethics code is a good thing to have clear guidelines, to have clear rules of how the, what the justices can do, what they should stay away from, where the lines are, that how are those going to be enforced? They pretty much have to be enforced by the court itself. You can't have Congress coming in and enforcing how the court does its business any more than the court can enforce how Congress or the president run their offices. This is, we have three independent co-equal branches of government, each one is supreme within its own branch. Better clarity, better disclosure requirements, perhaps, I think is a good idea. Generally, I think disclosure is good. It's worth noting that with all the current hoopla about Clarence Thomas and Samuel Alito and, I mean, Alexandria Ocasio-Cortez has argued that the two of them should be impeached, which is silly. It's just silly. There is not the slightest shred of evidence that any member of the current Supreme Court has acted on a case in a way that was inappropriately influenced by outside behavior. No evidence at all. It's simply not there. What you've got is arguments that, well, Clarence Thomas's wife expressed a political opinion on a political issue that in some way is related to a legal issue that might come before the court or Samuel Alito's wife runs flags up a flagpole that could be read as sending a political message that political message might conceivably be related in some way to a legal issue that might come before the court. That's not the stuff of recusal. That's not the stuff of conflict of interest. A judge or a justice should recuse if the judge has a financial interest in a party to the case if a member of the judge's family is a party to the case or if the judge or justice, him or herself, has expressed a view on the underlying legal issue. Some of the clearest examples of that that did not result in recusal were the ones that you referenced, someone like Ruth Bader Ginsburg performing a same-sex marriage and then sitting on the case that will decide whether the states must be forced to perform same-sex marriage. That's a pretty clear statement that she had already decided that legal issue and that's what a justice is not supposed to do. Not that a justice can't have political views, but that a justice can't pre-decide the legal issue. Yet even there, the notorious RBG did not recuse and no one on the court tried to force her to recuse, it was her call, it was her judgment. This is something where ultimately the judges and the justices themselves are going to make these judgments and to try to stretch recusal to the point of saying you should have recused because your wife had a political opinion is just nonsense. If the justice says, "Hey, this legal issue, I don't need to hear the arguments. I don't need to read the briefs. I've already cited what I think," that's a recusal issue. That's a problem. Once again, here what we're talking about is pure partisanship. We are talking about people who want Justice Thomas and Justice Alito to recuse from contentious social issues and contentious issues involving Donald Trump, for example, and you don't have to be a fan of Donald Trump to say, "Yeah, that kind of partisanship shouldn't decide when a judge decides a case." Right. We've got just under two minutes here and there's a little bit more to talk about here. The ethics code and then obviously we have this other issue with legislation essentially aimed at or actually another constitutional amendment potentially trying to not allow immunity of presidents. Can you talk a little bit about that? How likely is that to pass as well? Of course, this ties in with the Trump immunity decision that just came down from the court. I will say that there is disagreement among legal scholars as to exactly what that decision meant and I think the Supreme Court intentionally allowed ambiguity in what that decision meant. I think that this proposal to say no president is criminally immune from any action that a president takes while in office is a reaction to something that isn't a problem and it's a reaction that would have terrible consequences. Imagine that the Pearl Harbor invasion happens and Franklin Roosevelt decides to have Congress declare war on Japan and Germany and some prosecutor in some states says no, we shouldn't be in this war. It's a European and Pacific war. We should stay out and it was criminal for the president to send Americans to die. I'm going to bring criminal charges against the president. If you eliminate all immunity for presidents, those charges can go forward. Now, I think the president would have won eventually. I don't think Roosevelt would have been convicted, but a president having to defend criminal charges for making the decisions for which we pay him or her to make the tough decisions. That's crazy. It's crazy because it takes time and money and energy to defend yourself in criminal prosecutions and every Republican prosecutor would be going after president Biden or president Trump or, you know, it's, it's what the Supreme Court, I think did was draw a very smart line. They said core presidential functions are immune period. You can't criminalize a decision to enter a war. You can't criminalize a decision to nominate somebody for the Supreme Court. You can't nominate the president's core constitutional functions. The court said that immunity can be defeated if it's not a core function. And if the president acts outside of his or her official duties, then there is no immunity. So for example, if president Trump as a private citizen, as candidate Trump, if he did indeed instigate a criminal riot at the Capitol on January 6th, 2021, and I'm not saying whether he did or didn't, he hasn't been tried for that. But if he did, he would have no immunity as private citizen candidate Trump for that action, even though he was in the waning days of his presidency. But that wasn't his duty as president. If he appointed someone to the Supreme Court or declared war, but did so as a consequence of a bribe, well, the bribe could be criminalized because the appointment might be constitutionally protected by immunity, but the appointment might be protected, the declaration of war might be protected, but the bribe isn't a core constitutional function, accepting the bribe is not part of his core official duties. I think the court actually drew a really good balance between letting a president do his job and allowing a president to be prosecuted for real crimes. That's not just doing his or her job. But again, it's been being viewed by many people, non lawyers and some lawyers and some legal scholars as carte blanche for Donald Trump to do anything and get away with anything. And that's the reason this proposal is coming forward, that it would be a disaster and a mitigated disaster if this were to be enacted as a constitutional amendment. And also very, again, unlikely to happen in this current situation that we're in. As always, I appreciate you joining us and taking the time today. It's my pleasure. Thank you. That's all for today's Newsmakers podcast. Be sure to tune in for the next episode of the show and also head over to the CBN News YouTube channel and the CBN News channel to watch Newsmakers every week. We'll see you soon. in the next video. [MUSIC]
