President Joe Biden's new op-ed in The Washington Post makes the bold argument that, following a constitutional amendment to reverse a recent Supreme Court decision, Congress should pass both Supreme Court term limits and an ethics code to "restore the public's faith in the judicial system." According to Biden, the Court's "extreme" decisions and ethical crisis require immediate action.

Looking at the last Supreme Court term, none of this is true. The Court's opinions were nuanced and largely unanimous, and there are no credible allegations of vote-buying. If Biden wants to restore faith in the Court, he'd do better to highlight these nuances rather than using the Court as a political talking point.

At the outset, it's worth taking a bird's eye view of the Court. This term, the Court ruled unanimously in almost half (46 percent) of cases, which was similar to the year before (48 percent) and a significant uptick from the term before that (29 percent). Among the Court's unanimous or near-unanimous opinions were hot-button cases involving former President Donald Trump's eligibility for the presidency, access to the abortion drug mifepristone, the government's ability to dissuade companies from doing business with the National Rifle Association, regulation of social media companies, and the scope of the Second Amendment. Such consensus among the justices undercuts Biden's characterization of a rogue or extremist Court.

It's true that the Court is sometimes divided along partisan lines—and in many of those cases, the justices disagree vigorously. As Biden points out, Trump v. United States (regarding presidential immunity) and Dobbs v. Jackson (regarding abortion) represent two such cases. But just because these opinions were divisive doesn't make them radical.

For example, Biden chided the Court for imposing "virtually no limits on what a president can do" in the immunity case, but the Court maintained an ample sphere of liability for presidential acts. All nine justices agreed that presidents have absolutely no immunity for unofficial acts. While the majority ruled that absolute immunity applies to core, official acts, it emphasized that noncore duties are only presumptively immune.

Reasonable people can disagree about whether the Court made it too hard to rebut that presumption. But to make that call, we'll have to see how the standard plays out in practice. Trump's case, for example, will now go back down to the district court, which will determine which acts are official or unofficial, core or noncore, and whether the special prosecutor can surmount any presumption of immunity that applies. It makes little sense to say at this premature stage, as Biden does, that the only limits left on the president are "self-imposed."

Biden also criticizes the Court for "overturn[ing] settled legal precedents" like Roe v. Wade. But this is a critique with no substance. Precedent isn't an end in and of itself; prior cases should stand when they're correct and well-reasoned and fall when they're not. Some of the most important Supreme Court decisions in history "overturned settled precedent," including Brown v. Board of Education (overturning the separate but equal doctrine) and Gideon v. Wainwright (extending the right to counsel to felony defendants in state courts). Overturning precedent is part of a Supreme Court justice's job description. Without context, saying a judge overruled an earlier case is meaningless.

Biden's ethics accusations similarly lack substance. Though many have wrung their hands over Justice Clarence Thomas' friendship with businessman Harlan Crow, not one person—including Biden—has pointed to any specific instance where the justice supposedly traded his vote for a gift from his wealthy friend (and they ignore that Thomas voted against Crow's personal convictions in the abortion case). That's not surprising. Thomas is widely regarded as one of the most consistent justices on the Court who regularly writes separate opinions to explain his idiosyncratic views. Given that his views are so consistent, transparent, and well-known, it would be especially difficult for him to abandon them in exchange for a flight on a private jet. If anything, bribes are much more likely in the context of opaque decision making—as happens behind closed doors in the legislative and executive branches.

In at least some ways, the Court is showing more restraint than in prior years. It's taking fewer cases than ever (just 59 this year, compared to 82 a decade ago), it's finding reasons to sidestep thorny issues, and it's increasingly using judge-made legal doctrines to rule that the plaintiffs have no right to sue or that the case needs more time before the Court can step in. It also continues to produce interesting alignments between justices considered to be on opposite ideological spectrums. In a case involving the January 6 defendants, for example, Justice Ketanji Brown Jackson voted with "conservative" justices to throw out the convictions while Justice Amy Coney Barrett voted with the "liberals" to affirm them.

In sum, the Supreme Court is not exactly a radical conservative monolith. This term, Court watchers actually observed strong disagreements among Republican-appointed justices. If Biden cares about bolstering the public's faith in the judiciary, he'd be wise to emphasize this nuance.

The post Biden's Supreme Court Reforms Are Unnecessary and Wrong appeared first on Reason.com.

The Supreme Court on Friday ruled that the right to a trial by jury and to due process apply to people who face a steep sentencing enhancement under federal law, in a ruling that transfers some power from the hands of judges to the public and will affect many criminal defendants' future punishments.

The procedural history of the case is a bit of a whirlwind. But at its center is Paul Erlinger, who was charged in 2017 with being a felon in possession of a firearm and sentenced to 15 years under the Armed Career Criminal Act (ACCA), which increases the punishment for that offense—felon in possession of a firearm—from a 10-year maximum to a 15-year minimum if the defendant has been convicted previously of three violent felonies or serious drug offenses on separate occasions.

At sentencing came one of the initial twists, when the judge who handed down the 15-year punishment made clear it was inappropriate. Erlinger, who pleaded guilty, had gained steady employment, started a family, and remained drug-free in the more than a decade since his previous convictions, so a five-year sentence, the judge said, would be "fair." But under the ACCA, the court's hands were tied.

Then came the U.S. Court of Appeals for the 7th Circuit, which said shortly thereafter that two of Erlinger's offenses considered for the purposes of the ACCA did not actually qualify as violent felonies or serious drug crimes. Prosecutors, however, were undeterred. They returned to court and invoked convictions related to burglaries Erlinger committed 26 years before the felon in possession of a firearm charge, when he was 18 years old. Erlinger countered that the burglaries in question had been a part of one criminal episode—not distinct events as the ACCA requires—and that, most importantly, a jury would need to make the consequential determination about the separateness of those offenses.

The sentencing court disagreed, ruling it was the judge's decision and that the court was bound by the ACCA, thus reimposing the 15-year sentence that it once again called "unfortunate" and "excessive."

But Justice Neil Gorsuch, writing for the 6–3 majority opinion, explained that Erlinger did indeed have the 5th Amendment and 6th Amendment right to ask a jury whether those offenses were committed separately and if he is therefore vulnerable to the massive increase in incarceration that the sentencing court itself characterized multiple times as unjust. The outcome was at least somewhat predictable when considering yet another twist: After Erlinger appealed on the grounds that his constitutional rights had been violated, the government agreed. But the 7th Circuit still refused to reconsider his sentence, leaving Erlinger to ask the Supreme Court.

Core to Gorsuch's opinion is Apprendi v. New Jersey (2000), a Supreme Court precedent that ruled it was unconstitutional when a judge sentenced a defendant more harshly on the basis that a shooting had allegedly been motivated by racial animus, because no jury considered or made any determination beyond a reasonable doubt on that factor. A jury and a jury only, the Court ruled, may find "facts that increase the prescribed range of penalties to which a criminal defendant is exposed" when it will cause the penalty to exceed the prescribed statutory maximum.

But Gorsuch also says the Court has something else on its side today: history. "Prominent among the reasons colonists cited in the Declaration of Independence for their break with Great Britain was the fact Parliament and the Crown had 'depriv[ed] [them] in many cases, of the benefits of Trial by Jury,'" he writes. "The Fifth and Sixth Amendments placed the jury at the heart of our criminal justice system" in order "to mitigate the risk of prosecutorial overreach and misconduct" and serve as a check on the government.

This is not a novel area for Gorsuch, who has made clear his respect for the right to a trial by jury. Last month, he rebuked the Court's demurral from hearing a case concerning Florida's use of six-person juries as opposed to the traditional, historical practice of using 12-person panels.

Though much has been made of the ideologically fractured nature of the current Court, the decision in Erlinger did not fall neatly along partisan lines. Among the dissenters were Justices Samuel Alito, Brett Kavanaugh, and Ketanji Brown Jackson, the latter of whom argued that Apprendi—and, as an extension, the case law that has sprung from it—was wrongly decided. "I recognize that many criminal defendants and their advocates prefer the Apprendi regime, which provides some defendants with more procedural protections at sentencing," Jackson writes. "In my view, however, the benefit that some criminal defendants derive from the Apprendi rule in the context of their individual cases is outweighed by the negative systemic effects that Apprendi has wrought," which she says has hamstrung judges and increased sentencing disparities.

"The only thing judges may not do consistent with Apprendi is increase a defendant's exposure to punishment based on their own factfinding," counters Gorsuch. "Does Justice Jackson really think it too much to ask the government to prove its case (as it concedes it must) with reliable evidence before seeking enhanced punishments under a statute like ACCA when the 'practical realit[y]' for defendants like Mr. Erlinger is exposure to an additional decade (or more) in prison?"

The post The Supreme Court Again Strengthens the Right to a Jury Trial in Criminal Sentencing appeared first on Reason.com.