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 made that commitment concrete with proposals that deserve — but do not receive — bipartisan support.
In an effort backed by Vice President Kamala Harris, the presumptive Democratic presidential nominee, Biden proposed three changes: term limits for Supreme Court members, who now serve until they decide to retire; a binding and enforceable code of conduct for judges; and a constitutional amendment stating that “no one is above the law.” That amendment would essentially overturn the court’s disastrous decision to grant Donald Trump and future former presidents immunity from criminal prosecution 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. Other damage to the court’s image has been caused by a judicial selection process that has been marred by overt partisanship and the use of judicial appointments to engineer desired outcomes. Trump, who said in 2016 that he would appoint “pro-life” judges, has boasted that “I was able to kill Roe v. Wade,” the landmark abortion rights ruling that was overturned in 2022 in a decision that all three of his appointees signed on to.
Term limits would bring stability to judicial selection. Biden’s proposal would have presidents appoint a justice every two years, up to an 18-year term. It’s ridiculous that Trump was able to appoint three lifetime justices in a single term. He was helped, 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 pick 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 serve in other capacities and fill temporary positions when a Supreme Court vacancy occurred. However, some legal experts believe term limits would require a constitutional amendment. Whatever route they are achieved, term limits make sense. (Currently sitting justices would likely need to be exempt from term limits.)
Biden’s proposal for an ethics code applicable to Supreme Court justices comes after controversies involving Justices Clarence Thomas and Samuel A. Alito Jr. Last year, the justices finally adopted a code of conduct, but it lacks an enforcement mechanism. There are several options for giving the code teeth. Last week, Justice Elena Kagan suggested that an outside panel of respected judges could review violations of the code.
Finally, Biden’s endorsement of a constitutional amendment to limit presidential immunity faces considerable hurdles. But the Supreme Court invited such an effort with its brash 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.
Unsurprisingly, Republicans oppose judicial reform. Trump has complained on social media that Democrats are calling for “an illegal and unconstitutional attack on our SACRED Supreme Court of the United States.” House Speaker Mike Johnson (R-La.) said Biden’s proposals will “arrive dead” in the Republican-controlled House.
Biden and Harris should not let that pushback stop them from educating the public about the value to the country of Supreme Court reform; it should not be presented primarily as a way for Democrats to gain more influence over the court. (The way to ensure more Democratic appointees in the near term is to elect Harris in November.) The changes would have benefits for both parties, because they ensure that luck does not dictate which party gets the appointments.
The Supreme Court plays a vital role in this constitutional republic, but its legitimacy depends on the public's perception that judges are not politicians in black clothes. Biden's proposals offer a path to address that credibility crisis.
