In an address to the nation last week about abandoning his reelection campaign, President Biden mentioned Supreme Court reform as one of the priorities he would pursue in the remainder of his term. On Monday, Biden fleshed out that commitment with proposals that deserve — but aren’t receiving — bipartisan support.
In an initiative endorsed by Vice President Kamala Harris, the presumptive Democratic presidential nominee, Biden proposed three changes: term limits for members of the Supreme Court, who now serve until they choose to retire; a binding and enforceable code of conduct for justices; and a “No One Is Above the Law” constitutional amendment. Such an amendment would essentially overrule the court’s disastrous decision granting immunity from criminal prosecution to Donald Trump and future former presidents for their “official acts.”
Biden’s proposals would benefit a court that has undermined its credibility with major decisions in which Republican appointees vote one way and Democratic appointees another. Further damage to the court’s image has been inflicted by a selection process for justices that has been marred by naked partisanship and the use of court appointments to engineer desired results. Trump, who said in 2016 that he would appoint “pro-life” justices, has boasted that “I was able to kill Roe vs. Wade,” the landmark abortion rights ruling that was overruled in 2022 in a decision joined by his three appointees.
Term limits would bring stability to the selection of justices. Biden’s proposal would have presidents appoint a justice every two years to an 18-year term. It’s ridiculous that Trump was able to appoint three life-tenured justices in a single term. He was abetted, of course, by Senate Republicans who refused to act on President Obama’s nomination of Merrick Garland in 2016, citing the upcoming presidential election — and then rushed to confirm Trump’s choice of Amy Coney Barrett in late 2020, another presidential election year.
Rep. Ro Khanna (D-Fremont) has introduced the Supreme Court Term Limits and Regular Appointments Act under which justices after 18 years would become “senior justices” who could pursue other duties and sit in temporarily when a vacancy occurred on the high court. Some legal experts, however, believe that term limits would require a constitutional amendment. By whatever route they are achieved, term limits make sense. (It’s likely that justices now serving would have to be exempt from term limits.)
Biden’s proposal for an enforceable ethics code for Supreme Court justices follows controversies involving Justices Clarence Thomas and Samuel A. Alito Jr. The justices last year finally adopted a code of conduct, but it lacks an enforcement mechanism. There are several options for putting teeth in the code. Last week, Justice Elena Kagan suggested that an outside panel of respected judges could scrutinize code violations.
Finally, Biden’s endorsement of a constitutional amendment to rein in presidential immunity faces considerable hurdles. But the court invited such an effort with its reckless ruling this month on presidential immunity that could let Trump off the hook for some charges related to his attempt to overturn the 2020 election and embolden future presidents.
Predictably, Republicans oppose court reform. Trump has complained on social media that Democrats are calling for “an illegal and unConstitutional attack on our SACRED United States Supreme Court.” House Speaker Mike Johnson (R-La.) said Biden’s proposals are “dead on arrival” in the Republican-controlled House.
Biden and Harris shouldn’t let such rejection deter them from educating the public about the value to the country of Supreme Court reform; it shouldn’t be presented primarily as a way for Democrats to achieve more influence over the court. (The way to ensure more Democratic-appointed justices in the near term is to elect Harris in November.) The changes would have benefits for both parties, because it ensures that luck doesn’t dictate which party gets appointments.
The Supreme Court plays a vital role in this constitutional republic, but its continued legitimacy depends on a perception by the public that the justices aren’t politicians in black robes. Biden’s proposals offer a path to addressing that crisis of credibility.
