A Phil Hall Op-Ed: President Biden teeter-tottered back into the spotlight today with a ghostwritten article and a TelePrompTer speech that outlines his ideas to “reform” the Supreme Court.
(In case you’re wondering what this has to do with real estate, be patient and it will be explained in a minute.)
“I have great respect for our institutions and separation of powers,” said the president’s ghostwriters on his behalf. “What is happening now is not normal, and it undermines the public’s confidence in the court’s decisions, including those impacting personal freedoms. We now stand in a breach.”
Of course, it is odd to be lectured on “normal” government by the man who was arm-twisted into relinquishing the role as his party’s presidential nomination. Nonetheless, Biden wants an enforceable ethics code for the Supreme Court’s justices (though he won’t say who is doing the enforcement), along with the revocation of the court’s Constitutionally mandated lifetime terms and the voiding of a recent Supreme Court ruling on presidential immunity.
First, let’s quit the charade and be blunt – this has nothing to do with reform and everything to do with revenge. The Biden administration that has been flummoxed by the rulings of a conservative-majority court that has refused to be bullied into rubberstamping Biden’s agenda. Even Biden himself acknowledged this, as reported by the Washington Post when he told a conference call of progressive lawmakers that he was seeking “a major initiative on limiting the court.”
The administration, along with its allies on Capitol Hill and stooges in the left-wing mainstream media, have tried to denigrate the honesty and integrity of the court’s conservative justices through threats of barely veiled violence (Sen. Chuck Schumer’s “you will pay the price” denunciation against Justices Brett Kavanaugh and Neil Gorsuch) and the invention of phony scandals. Lest we forget, the Biden Justice Department did nothing to stop lunatic liberals who have been harassing the justices at their homes, although one extremist planning the murder of Kavanaugh was apprehended.
In regard to the Biden administration’s specific plans, appointing a Supreme Court justice every two years for 18-year terms is plain old court packing. The creation of an ethics code would need to be created internally by the Supreme Court and cannot be forced by the Executive Branch, especially from an administration with major ethics lapses – and by the way, who brought that cocaine into the White House? As for the immunity ruling overturn, Biden has falsely claimed that this provides the office of the president with blanket immunity, and he is pushing for a “No One Is Above the Law Amendment” to the Constitution – don’t bet on that happening.
Now, what does this have to do with real estate? The Supreme Court often has final say on contentious issues and has kiboshed the overreach or the vile behavior of the Executive and Legislative Branches of the federal government. For example, the Supreme Court’s 1917 Buchanan v. Warley ruling came a half-century before the passage of the Fair Housing Act. That is why the court must operate independently of being muscled into submission by the White House and/or Congress.
Over the past few months, we’ve seen the Supreme Court siding with property owners and developers while limiting the U.S. Environmental Protection Agency’s authority over areas that it defines as wetlands, affirming that the funding mechanism of the Consumer Financial Protection Bureau (CFPB) did not run afoul of the Appropriations Clause of the Constitution, and the decision that cities have the right to enforce bans on homeless people sleeping outdoors.
Personally, I disagreed with the CFPB decision, and on a historic basis I think the 2005 Kelo v. City of New London was one of the court’s worst rulings. But it is rare for any Supreme Court term to generate unanimous praise – hey, you can’t please everyone. And while the court’s history is littered with boneheaded mistakes (hello, Dred Scott v. Sanford and Plessy v. Ferguson), it is not unprecedented for the Supreme Court to revisit and overturn historic rulings that created more problems than solutions.
Like the old saying goes – if it ain’t broke, don’t fix it. Biden’s bloviating is an irritating distraction that, mercifully, will come to naught.
