UPDATE: For those wishing to listen to or read President Franklin Roosevelt’s “fireside chat”on Court-packing, here is a link to the audio and the transcript, courtesy of the Miller Center at the University of Virginia:

https://millercenter.org/the-presidency/presidential-speeches/march-9-1937-fireside-chat-9-court-packing

Facing long odds against the idea, President Biden and Vice President Harris on Monday began an effort to restrict the Supreme Court’s powers and to limit presidential legal immunity.  Unless Democrats win sizeable majorities in Congress in this year’s elections, the effort may well be doomed.

In official statements and in a newspaper column, the President outlined three proposals, and quickly won support for them from his Vice President, now the leading Democratic presidential candidate.  The proposals would:

• Limit the length of time a Justice could stay on the Court to 18 years.
• Impose an enforceable code of ethics on the Justices, including a ban on sitting on cases involving conflicts of interest.
• End the new grant of legal immunity to criminal prosecution that the Supreme Court has just created for past and future Presidents.

Although all three ideas would have an impact on the Court’s use of its constitutional powers, the only one that is proposed as a formal amendment to the Constitution is the concept of banning presidential immunity to criminal charges.  On July 1, the Supreme Court declared that immunity to be a constitutional requirement.

Those who drafted the proposals apparently believe that Congress has the authority to specify a term limit on the Justices by ordinary legislation, even though the Constitution’s Article III specifies that a Justice can remain on the Court for as long as they serve with “good behavior.”  There is no other limit.

That may explain why the proposal was phrased as a limit on the time a Justice could remain “in active service on the Supreme Court.”  That would seem to mean that a Justice, after 18 years, would have to step aside but would formally keep the title and the salary and be eligible to serve on lower federal courts.

Among the questions that will arise as the details of the new proposals are fleshed out are these:

• Would the term limits apply to the present nine Justices, assuming the measure could be passed soon?
• How will the plan actually work? It would specify that a President may appoint a Justice every two years, so does that mean that it would take 18 years to replace the entire Court if Justices did not leave the Court voluntarily or die in time for the next appointment?
• Would term-limited Justices serve on lower courts, or in some other official capacity?
• What government agency would enforce a new, binding code of ethics? What remedies, short of impeachment, could be imposed for an ethical violation?

But, beyond those specific issues, two fundamental questions also would arise:

• If lawsuits would be filed to challenge any of the legislative changes, and that seems inevitable, how would they fare when those cases reached the Supreme Court?
• Since existing Senate rules on the filibuster would require a minimum of 60 votes to enact any of the legislative bills, would the filibuster be abandoned if Democrats keep a majority in the Senate.

Legal challenges do seem all but certain.  A private group that strongly supports the current conservative majority on the Court, the so-called Judicial Crisis Network, promptly labeled the new proposals a “war on separation of powers” and thus a challenge to the Constitution as it exists now.

If the immunity proposal were put forward as a constitutional amendment, that would require approval by two-thirds of each chamber of Congress, and formal ratification by three-fourths (38) of the states.  In the current partisan polarization in the nation, are those super-majorities anywhere within reach for any proposal for constitutional change?  (The Constitution was last amended 53 years ago.)

Efforts already had started in Congress this month to amend the Constitution to end the concept of presidential immunity to criminal prosecution.  Introduced by Rep. Joe Morelle, New York Democrat, the measure quickly drew 48 co-signers.  The proposal will go before the House Judiciary Committee.

Besides ending legal immunity, that measure would also amend the Constitution to forbid any President to give themselves a pardon if they were to be convicted of any crime.  The Supreme Court, in its recent decision on immunity, described presidential pardoning power as being so basic that it cannot be limited in any way by Congress or the courts.

The new Biden plan for the courts did not mention any limit on the pardon power.

Another idea that was conspicuously absent from the Biden-Harris plan would be an increase in the number of seats on the Court from the present nine.  The concept apparently would be aimed at increasing the number of Justices to offset the current six-Justice conservative majority.

Congress originally set the Court membership at six in 1789.  Six times throughout history, Congress changed the number.  It was set at nine in 1869, and has not been changed since then.

The proposal, of course, is an echo of the famous “Court-packing” plan that President Franklin Roosevelt proposed in 1938, because of his frustration with repeated decisions by the Court striking down key “New Deal” laws passed by Congress to deal with the Great Depression that began in 1929.  That plan was wildly unpopular across the nation, and died in Congress – setting a precedent against the idea that has lasted for more than eight decades.

Another proposal that did not get included in the Biden-Harris plan was any change in the Court’s actual power to decide cases – that is, its jurisdiction.  The last time that concept was floated was in the 1950s, when Congress was frustrated by the liberalism of the “Warren Court,” under Chief Justice Earl Warren.  Congress refused to enact any of that type of bill.

The Biden-Harris plan was promoted by the President and the Vice President as necessary to deal with a “crisis of confidence” in the Court, caused by the ethical scandals – especially those involving Justices Clarence Thomas and Samuel Alito – and by the current conservative majority’s inclination to overturn prior constitutional precedents, like those protecting abortion rights.

Although the Court has been under sustained public criticism for some years, that clearly has increased because of the ethical scandals and, most recently, by the surprising decision by the Court giving Donald Trump and all Presidents a broad constitutional immunity to criminal prosecution.

The scope of that immunity is getting its first real-world test now in a criminal case against Trump in New York state court.  Prosecutions there are attempting to salvage all 34 guilty verdicts, imposed by a jury on May 30 and now under review because of the Justices’ decision.  If those verdicts remain intact, Trump will be sentenced on September 18.