Constitution expert: Biden’s SCOTUS changes ‘not what founders would want’

(The Center Square) – An Illinois Constitutional attorney and members of Congress react to President Joe Biden’s calls for US Supreme court reforms.

Illinois U.S. Sen. Dick Durbin, like Biden, is calling for an enforceable ethics code for the U.S. Supreme Court. In a statement, Durbin said Justice Clarence Thomas’s spouse was on the payroll of political organizations seeking to overturn the 2020 election, yet Thomas refused to recuse himself from cases on issues directly related to the riot in Washington D.C. on Jan. 6, 2021.

“The American people are demanding Supreme Court ethics reform, and I will continue my twelve-year effort until it is done,” stated Durbin, D-Springfield.

David Shestokas, a constitutional attorney, said there’s an existing process for Durbin and his colleagues to use if they believe Thomas did something wrong.

“The impeachment clause says, ‘if somebody is impeached and then removed from office, then they can be prosecuted,’” said Shestokas. “Senator Durbin can have at it and ask the Illinois delegation, which is dominated by his colleagues, to introduce articles of impeachment against Justice Thomas.”

In October 2023, former president Donald Trump moved to dismiss an indictment based on presidential immunity. Durbin said the presidential immunity decision was wrongly decided and must be remedied. Shestokas said the decision did not give “blanket immunity” to a president and explained the founding fathers intended the president to have some immunity so he could do his job.

“They gave the president limited immunity; they did not give the presidents blanket immunity. Otherwise, goodness gracious, probably all the living past presidents … there were drone strikes that [former President Barack Obama] issued, drone strikes that killed American citizens without the due process of law, there’s an argument to be made that that was a criminal act and of course he did that using war powers.”

Shestokas said the founders wanted what they called an “energetic” executive who defends the interest of the country. Shestokas said the court had to step in because this was the first time in history he said a justice department has overstepped their prosecution powers.

Biden and Vice President Kamala Harris have been calling for U.S. Supreme Court changes, including setting term limits for justices. Justices hold office as long as they choose and can only be removed from office by impeachment.

Shestokas said term limiting justices goes against the founding fathers’ vision of the high court.

“The reason they serve for life is so that they in fact are not swayed by political considerations. They’re not up for reelection. So they don’t make decisions based on politics but rather they make decisions based upon the law,” said Shestokas.

Harris said there is a clear crisis of confidence facing the Supreme Court as its fairness has been called into question after numerous ethics scandals and decisions overturning long-standing precedent. Shestokas explained the Dobbs decision overturning the long-standing Roe v. Wade decision on abortion was an interpretation of the 10th Amendment.

“Dobbs doesn’t say anything about abortion being good, bad or indifferent. It says that it is something the people should have a say in rather than having it be decided on high by a few folks in black robes in Washington D.C.,” said Shestokas. “This is something for the people to decide through the democratic process.”

Biden has made Supreme Court reforms a priority for his final six months in office. It’s unclear if Congress will address the issue before the end of the year.