This is what Justice Gorsuch said during a recent interview with Fox News. To be precise, the following is a direct quote from the above NBC article, which includes the exact statements he made during the interview:
Asked by Fox News’ Shannon Bream to respond to Biden’s proposal, Gorsuch told her, “You’re not going to be surprised that I’m not going to get into what is now a political issue during a presidential election year. I don’t think that would be helpful.”
But the justice added that to Americans, the independent judiciary “means that when you’re unpopular, you can get a fair hearing under the law and under the Constitution. If you’re in the majority, you don’t need judges and juries to hear you and protect your rights. You’re popular.”
The judicial system is “there for the moments when, when the spotlight’s on you, when the government’s coming after you, and don’t you want a ferociously independent judge and a jury of your peers to make those decisions?” Gorsuch added.
“And so I just say, be careful,” he concluded.
So, what is in the Biden’s proposal that makes Justice Gorsuch to issue such a strong warning to the sitting President of the United States (who, according to the Justice himself, has absolute immunity from criminal prosecution for pretty much anything and everything he wants to do, as long as it can be categorized as being within the outer perimeter of his official acts and duties)? Below is the summary of the proposal, quoted from this article:
Biden announced the three-pronged proposal last week, calling for 18-year term limits for the justices, an enforceable code of ethics and a constitutional amendment to counteract the Supreme Court’s recent presidential immunity decision.
If you are wondering which one of these three proposals could be so outrageous that makes a Supreme Court Justice to almost threaten the sitting President of the United States, you are not alone. But to better understand the absurdity of the comments, let’s break things down, starting with Biden’s proposals:
Currently, Supreme Court Justices are appointed for life (assuming “good behavior”) or until they voluntarily retire. There is of course a possibility of impeaching a Supreme Court Justice, but that is almost a practical impossibility considering the completely polarized houses of congress. The lifetime appointment of the Justices (“during good behavior”) is indeed mentioned in the Constitution, although there may be some arguments about whether that lifetime tenure means lifetime service as a Supreme Court Justice, or lifetime tenure as any judicial appointment including, e.g., as an appellate court judge after completing a term in the Supreme Court. But that’s a debate for constitutional scholars and we really don’t need to know all the details about that. As far as I can tell, whether a term limit for the justices is constitutional or not (which can ultimately determine the fate of the term limit proposal), the proposal itself does not seem so outrageous. After all, 18 years is not a short period, and the Justices should not feel pressure about not having enough time to provide meaningful service and contributions to build a legacy. And if there is no concern about being re-elected, and if the appointment can continue, e.g., as an appellate court judge, there should be no financial concerns either. Furthermore, even if adopted, such a term limit will likely apply to only future justices and not the sitting ones. So, regardless of this proposal having a chance of being even considered or not, it does not seem to be outrageous enough to warrant a harsh reaction from a Supreme Court Justice.
As for the enforceable code of ethics, even though every other judge including federal and state or trial and appellate, is bound by an enforceable code of ethics, up until late 2023, the Supreme Court Justices were the only jurists who did not even have an official code of conduct. Under the pressure resulting from revelations by various media outlets regarding lavish gifts (to the tune of several millions of dollars) some Supreme Court Justices have received over the course of their tenure, some of which were not even disclosed in the required disclosure forms, in November of 2023, the Supreme Court published a code of conduct document that outlined various rules in several categories. However, there was no enforcement mechanism proposed for these codes of conduct. Basically, the justices would voluntarily adopt the code, and would decide for themselves whether they are violating the code or not. As ridiculous as this sounds, this is the current state of the matters for ethics compliance by the Supreme Court Justices. I mentioned about the lavish gifts above, and in all honestly, probably most, if not all, of those lavish gifts were received before publication of this code of conduct. But the example below is actually from a time after the code of conduct was published, and highlights the level of discretion the justices have on enforcing the code on themselves.
Canon 3, Section B. (2) of the code of conduct says:
A Justice should disqualify himself or herself in a proceeding in which the Justice’s impartiality might reasonably be questioned, that is, where an unbiased and reasonable person who is aware of all relevant circumstances would doubt that the Justice could fairly discharge his or her duties. Such instances include, but are not limited to, those in which:
Then, item (d) in the list reads as
The Justice or the Justice’s spouse, or a person related to either within the third degree of relationship, or the spouse of such person, is known by the Justice: (i) to be a party to the proceeding, or an officer, director, or trustee of a party; (ii) to be acting as a lawyer in the proceeding; (iii) to have an interest that could be substantially affected by the outcome of the proceeding; or (iv) likely to be a material witness in the proceeding.
Justice Thomas’s wife was indeed a material witness in the investigations of the House Select January 6th Committee into the attack on the United States Capitol on January 6th, 2021. The current court case in Washington DC regarding events surrounding the January 6th insurrection and certification of votes by congress, was stayed due to the claim of absolute immunity by the defendant and the appeal process, which went all the way to the Supreme Court. The hearing took place on April 25, well after the code of conduct was published. Note that the code of conduct says that if the Justice’s spouse is “likely to be a material witness in the proceeding”, then the “Justice should disqualify himself or herself” from that proceeding. And based on her testimony in front of the January 6th Committee of the Congress, it is reasonable to assume that Justice Thomas’s wife is likely to be a material witness in the Washington DC case as well. But, not only Justice Thomas did not recuse/disqualify himself from the case, he even wrote a separate concurring opinion, in which he provided a road map for another Trump-appointed Judge in Florida on how to dismiss the case about the classified documents. So, basically, Justice Thomas’s message to the people of the United States was, look, I can do whatever I want, and you cannot do anything about it.
From the above, I could see Justice Thomas to be upset about Biden’s proposal on enforceable code of ethics, but am not sure why Justice Gorsuch would take that too personally, enough to issue a warning to the President to “be careful.” Any honest and reasonable person, including Supreme Court Justices, should not have any issue with an enforceable code of ethics, as it is present for every other jurist throughout the country, unless they really need to perform some unethical acts for whatever reason, that they want to go unpunished, or even unnoticed.
Lastly, the amendment to counteract the Supreme Court’s recent presidential immunity decision (the same case that I referenced above), affects the former president and may prevent him from being able to get away with some criminal acts during the aftermath of 2020 presidential election. But it also limits the powers and immunity of the current sitting president. So, a reasonable person would assume President Biden has more at stake there than Justice Gorsuch. So, it does not seem very reasonable for Justice Gorsuch to issue a “be careful” warning to President Biden, just to help him not limit his own powers and immunity. The only plausible explanation here seems to be Justice Gorsuch doing the bidding for the former president. And yes, that sense of loyalty to the man who appointed the Justice to his lifetime position, and the partisan bias that gave the former president such broad immunity in the court’s July 1st decision, could explain the threatening words of “be careful” by Justice Gorsuch to President Biden. In fact, the part of the interview in which Justice Gorsuch says the judicial system is “there for the moments when, when the spotlight’s on you, when the government’s coming after you, and don’t you want a ferociously independent judge and a jury of your peers to make those decisions?” (emphasis added by me) is almost a smoking gun showing that he is indeed doing the bidding for the former president. One question that may be raised, though, is that, if Justice Gorsuch really believes that “an independent judge and jury of your peers” should make “those decisions”, then why one would need immunity? Just let the judge and the jury decide on whether a crime has indeed taken place or not. The immunity decision actually goes against the idea that the decision should be made by an independent judge and jury, by preventing the case from even being prosecuted in front of an independent judge and jury of your peers, let alone being decided.
For reference, the above mentioned immunity decision was so outrageous that Justice Sotomayor wrote the following in her dissenting opinion:
Today’s decision to grant former Presidents criminal immunity reshapes the institution of the Presidency. It makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law.
The President of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune
And ended with
With fear for our democracy, I dissent.
I end this post by this open question: what did Justice Gorsuch really mean by saying that to Americans, the independent judiciary “means that when you’re unpopular, you can get a fair hearing under the law and under the Constitution. If you’re in the majority, you don’t need judges and juries to hear you and protect your rights. You’re popular.” I cannot imagine a reasonable explanation/interpretation for this statement. Does he mean that Trump is unpopular? or is not in the majority? What does popularity has anything to do with the administration of justice anyways? Do judges rule based on whether one is popular or not? I am really at a loss. Does anyone want to speculate what he really meant?