President Joe Biden has unveiled a long-awaited proposal for changes at the U.S. Supreme Court, calling on Congress to establish term limits and an enforceable ethics code for the court’s nine justices. He’s also pressing lawmakers to ratify a constitutional amendment limiting presidential immunity.
The White House on Monday detailed the contours of Biden’s court proposal, one that appears to have little chance of being approved by a closely divided Congress with just 99 days to go before Election Day.
Still, Democrats hope it’ll help focus voters as they consider their choices in a tight election. The likely Democratic nominee, Vice President Kamala Harris, who has sought to frame her race against Republican ex-President Donald Trump as “a choice between freedom and chaos,” quickly endorsed the Biden proposal. She added that the changes are needed because “there is a clear crisis of confidence facing the Supreme Court.”
The White House is looking to tap into the growing outrage among Democrats about the court, which has a 6-3 conservative majority, issuing opinions that overturned landmark decisions on abortion rights and federal regulatory powers that stood for decades.
Liberals also have expressed dismay over revelations about what they say are questionable relationships and decisions by some members of the conservative wing of the court that suggest their impartiality is compromised.
“I have great respect for our institutions and separation of powers,” Biden argues in a Washington Post op-ed published Monday. “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.”
Harris in a statement said the reforms being proposed “will help to restore confidence in the Court, strengthen our democracy, and ensure no one is above the law.”
The president planned to speak about his proposal later Monday during an address at the LBJ Presidential Library in Austin, Texas, to mark the 60th anniversary of the Civil Rights Act.
Biden is calling for doing away with lifetime appointments to the court. He says Congress should pass legislation to establish a system in which the sitting president would appoint a justice every two years to spend 18 years in service on the court. He argues term limits would help ensure that court membership changes with some regularity and adds a measure of predictability to the nomination process.
He also wants Congress to pass legislation establishing a court code of ethics that would require justices to disclose gifts, refrain from public political activity and recuse themselves from cases in which they or their spouses have financial or other conflicts of interest.
Biden also is calling on Congress to pass a constitutional amendment reversing the Supreme Court’s recent landmark immunity ruling that determined former presidents have broad immunity from prosecution.
That decision extended the delay in the Washington criminal case against Trump on charges he plotted to overturn his 2020 presidential election loss and all but ended prospects the former president could be tried before the November election.
Most Americans supported some form of age limit for Supreme Court justices in an AP-NORC poll from August 2023. Two-thirds wanted Supreme Court justices to be required to retire by a certain age. Democrats were more likely than Republicans to favor a mandatory retirement age, 77% to 61%. Americans across age groups tend to agree on the desire for age limits – those age 60 and over were as likely as any other age group to be in favor of this limit for Supreme Court justices.
The first three justices who would potentially be affected by term limits are on the right. Justice Clarence Thomas has been on the court for nearly 33 years. Chief Justice John Roberts has served for 19 years, and Justice Samuel Alito has served for 18.
Supreme Court justices served an average of about 17 years from the founding until 1970, said Gabe Roth, executive director of the group Fix the Court. Since 1970, the average has been about 28 years. Both conservative and liberal politicians alike have espoused term limits.
“If justices have this much power, then they should be individuals who reflect America as it currently is, not the America of 30 or 40 years ago, the dead hand of the president who appointed them still influencing policy,” Roth said.
An enforcement mechanism for the high court’s code of ethics, meanwhile, could bring the Supreme Court justices more in line with other federal judges, who are subject to a disciplinary system in which anyone can file a complaint and have it reviewed. An investigation can result in censure and reprimand. Last week, Justice Elena Kagan called publicly for creating a way to enforce the new ethics code, becoming the first justice to do so.
Still, when it comes to the Supreme Court, creating an ethics code enforcement mechanism isn’t as easy as it sounds.
The attorney general has always had the power to enforce violations of the financial and gift disclosure rules but has never apparently used that power against federal judges, said Stephen Gillers, a legal ethics expert at NYU School of Law.
The body that oversees lower court judges, meanwhile, is headed up by Roberts, “who might be reluctant to use whatever power the conference has against his colleagues,” Gillers wrote in an email.
The last time Congress ratified an amendment to the Constitution was 32 years ago. The 27th Amendment, ratified in 1992, states that Congress can pass a bill changing the pay for members of the House and the Senate, but such a change can’t take effect until after the next November elections are held for the House.
Trump has decried court reform as a desperate attempt by Democrats to “Play the Ref.”
“The Democrats are attempting to interfere in the Presidential Election, and destroy our Justice System, by attacking their Political Opponent, ME, and our Honorable Supreme Court. We have to fight for our Fair and Independent Courts, and protect our Country,” Trump posted on his Truth Social site this month.
There have been increasing questions surrounding the ethics of the court after revelations about some of the justices, including that Thomas accepted luxury trips from a GOP megadonor.
Justice Sonia Sotomayor, who was appointed during the Obama administration, has faced scrutiny after it surfaced her staff often prodded public institutions that hosted her to buy copies of her memoir or children’s books.
Alito rejected calls to step aside from Supreme Court cases involving Trump and Jan. 6, 2021, insurrection defendants despite a flap over provocative flags displayed at his homes that some believe suggested sympathy to people facing charges over storming the U.S. Capitol to keep Trump in power. Alito says the flags were displayed by his wife.
Leonard Leo, co-chairman of the conservative and libertarian Federalist Society, said changes proposed by Biden are about “Democrats destroying a court they don’t agree with.”
“No conservative justice has made any decision in any big case that surprised anyone, so let’s stop pretending this is about undue influence,” said Leo, who assisted the Trump administration with the selections and confirmations of Justices Neil Gorsuch and Brett Kavanaugh.
Democrats say the Biden effort will help put a bright spotlight on recent high court decisions, including the 2022 ruling stripping away women’s constitutional protections for abortion, by the conservative-majority court that includes three justices appointed by Trump.
The announcement marks a remarkable evolution for Biden, who as a candidate had been wary of calls to reform the high court. But over the course of his presidency, he has become increasingly vocal about his belief that the court has abandoned mainstream constitutional interpretation.