By Marilyn Odendahl
The Indiana Citizen
August 1, 2024
As President Joe Biden makes a public call for reforming the U.S. Supreme Court, Indiana might be able to provide some helpful advice about judicial retirements and ensuring good behavior while justices are on the bench.
Biden made his proposals, which he said would “restore trust and accountability” to the Supreme Court of the United States, in an op-ed published in The Washington Post on Monday. He is pushing for limiting the justices to 18-year terms and for binding the justices to an enforceable code of conduct.
“We can and must restore the public’s faith in the Supreme Court,” Biden wrote.
Retired Indiana Chief Justice Randall Shepard said the job of repairing the U.S. Supreme Court’s reputation and standing starts with the nine justices. They have a duty to do their best and look for ways to reform and improve, he said.
“There are probably some things that could be done by legislation,” Shepard said. “But I think the members of the court themselves always have a leading responsibility for operating in the best” interest of the court.
Shepard was appointed to the Indiana Supreme Court in 1985 at the age of 35 by former Gov. Bob Orr, a Republican. He became chief justice two years later in March 1987 and served in that position until he retired in March 2012. The longest-serving chief justice in Indiana history, Shepard has been credited with leading the Indiana Supreme Court to become “nationally recognized for the quality of its judicial opinions and an abundance of innovative advancements in judicial administration.”
Asked if he, as a former chief justice, was disappointed in the U.S. Supreme Court, as it has seemingly exacerbated the division in the country through its rulings, while some of the justices also have become entangled in ethical scandals, Shepard said he remained confident in the court and its members.
“I think all things and all circumstances taken into account, I still have a favorable attitude towards the nine,” Shepard said of the U.S. Supreme Court justices. “I think they understand that there are issues that need attention.”
This latest call for reform was sparked by the Supreme Court’s ruling in Trump v. United States, issued July 1. In a 6-3 split between the conservative and liberal justices, the court found the president has absolute immunity from criminal prosecution for official actions taken while in office. Some critics view the decision as protecting former President Donald Trump from prosecution for crimes he allegedly committed while in the White House.
Biden wrote the Supreme Court’s ruling essentially puts the president above the law. Now, the only limits on what presidents can do, he wrote, “will be those that are self-imposed by the person occupying the Oval Office.”
“If a future president incites a violent mob to storm the Capitol and stop the peaceful transfer of power – like we saw on Jan. 6, 2021, – there may be no legal consequences,” Biden wrote.
In his op-ed, Biden called for a constitutional amendment to curtail immunity by giving no protection to former presidents for crimes committed while in office.
However, Shepard is skeptical about the motivation behind the call for reform. He said the country would “lose something” in the long term if any prosecutor in America could file a criminal case against a former president. When the “emergency bell goes off in the middle of the night,” Shepard said, he wants the president focused on finding the best solution, rather than worrying if a criminal case will be filed.
“I’m saddened by the fact that the debate of this sort would get generated because you wanted to reverse the outcome in a given set of decisions,” Shepard told The Indiana Citizen. “Ethics is on a different footing, but I think this mostly has to do with outcomes in cases that the proponents dislike the result.”
For the U.S. Supreme Court specifically, Biden said his term limits proposal would allow a new justice to be appointed every two years. This would not only bring fresh members onto the bench with “some regularity,” but also would reduce the possibility that a single president “radically alters” the court for generations to come, Biden asserted.
While Indiana Supreme Court justices are not term limited, they are required to retire at age 75. Shepard, who stepped down in his mid-60s, said initially he opposed mandatory retirement, but has since changed his position after encountering situations where there was “real concern” the person needed to retire.
“I finally came around to the idea that having a nice solid number was probably a better approach” than having to figure out what to do if a judge stayed on the bench too long, Shepard said.
However, Shepard said he is “a little ambivalent” about limiting U.S. Supreme Court justices to 18 years. He pointed to some of the most-esteemed justices to serve, including Oliver Wendell Holmes, Thurgood Marshall and William O. Douglas, who sat on the court for decades. Term limits, he said, would not benefit the country, because some of the well-regarded justices from the past “wouldn’t have done many of things for which they’re lauded.”
Indiana uses a merit selection process to choose its justices. The Indiana Supreme Court has five justices, who were nominated by the Judicial Nominating Commission and then appointed by the governor. Periodically, the justices appear on a general election ballot and Hoosier voters are giving the option of retaining or removing the individuals from the bench.
Shepard cited statistics that show the percentage of Hoosiers answering the retention question on the ballot has been rising. Also, he said, the percentage of “yes” votes is increasing.
Even so, Shepard dismissed the idea of requiring U.S. Supreme Court justices to sit for retention votes. He said the process to retain the justices would become politicized, and soiled with money and attack ads.
“I would have the fear that if you had a single national vote, that you would increase the level of political involvement in the Supreme Court,” Shepard said. “That is to say that the various interest groups or political action committees would lift up and go after the incumbent (justice) because they didn’t like (the justice’s) rulings or votes.”
Along with limiting their time on the bench, Biden wants to ensure the justices will act in an ethical manner. He described his call for imposing an enforceable code of conduct on the U.S. Supreme Court as “common sense.”
Saying the nation’s highest court was “mired in a crisis of ethics,” Biden’s op-ed referenced the gifts given to Justice Clarence Thomas, and said the conflicts of interests surrounding Thomas and Justice Samuel Alito over the Jan. 6 insurrection, “raise legitimate questions about the court’s impartiality.” Biden also wrote that the court’s current voluntary ethics code is “weak and self-enforced.” He said the justices should be required to disclose gifts, refrain from public political activity and recuse themselves from cases in which they or their spouses have a financial stake or other conflict of interest.
“What is happening now is not normal, and it undermines the public’s confidence in the court’s decisions, including those impacting personal freedoms,” Biden wrote.
Indiana justices are bound by the court’s judicial code of conduct. The code, adopted in 1993, includes four canons, which state the overarching principles of judicial ethics, and an extensive series of rules that cover a range of actions from promoting confidence in the judiciary and being impartial and fair to the acceptance of gifts. Judges and justices who violate the rules could face an ethics complaint and get called before the Judicial Qualifications Commission.
Shepard said the proposal offered by U.S. Supreme Court Justice Elena Kagan was a good solution.
Speaking last week at the 2024 Ninth Circuit Judicial Conference in California, Kagan said the new ethics rules the U.S. Supreme Court had adopted were good but they needed an enforcement mechanism. She proposed that Chief Justice John Roberts appoint a panel of respected judges to enforce the rules, according to the Associated Press.
“I think Justice Kagan is correct,” Shepard said. “I think she’s right that having some sort of independent charging body would be a useful thing, but it is sort of tricky figuring out how you actually do that.”
The risk in creating the independent panel, Shepard said, would be making sure the appointees would not target the justices in order to either obtain or remove a vote in a case pending before the U.S. Supreme Court. In theory, the panel works, but, in practice, maintaining the integrity and enforcing the ethics code, rather than trying to influence litigation, would be difficult, he said.
Dwight Adams, an editor and writer based in Indianapolis, edited this article. He has been a content editor, copy editor and digital producer at The Indianapolis Star and IndyStar.com, and a planner for other papers, including the Louisville Courier Journal.
The Indiana Citizen is a nonpartisan, nonprofit platform dedicated to increasing the number of informed and engaged Hoosier citizens. We are operated by the Indiana Citizen Education Foundation, Inc., a 501(c)(3) public charity. For questions about the story, contact Marilyn Odendahl at marilyn.odendahl@indianacitizen.org.