President Joe Biden on Monday proposed three reforms to the Supreme Court. Stressing that he has “great respect for our institutions and the separation of powers,” but contending that “[w]hat is happening now is not normal,” Biden pointed to the court’s recent decision finding that former presidents have broad immunity for crimes that they commit while in office, as well as the ethics issues surrounding some members of the court.
Biden announced his proposed changes in an op-ed in the Washington Post on the same day that the Annenberg Public Policy Center reported on what it characterized as a “withering of public confidence in the courts,” including a “considerable drop in trust” in the Supreme Court. However, with Republicans in control of the House of Representatives, Biden’s proposals are unlikely to garner the support in Congress that would be necessary to enact any reforms.
Biden first suggested a constitutional amendment to “make clear that there is no immunity for crimes a former president committed while in office.” The court’s recent decision last month in Trump v. United States, Biden wrote, “means there are virtually no limits on what a president can do.” But the United States, Biden stressed, “was founded on a simple yet profound principle: No one is above the law.”
Amendments to the Constitution require a two-thirds vote of both houses of Congress, followed by ratification by three-quarters of the states – rendering passage of such an amendment extremely unlikely, if not all but impossible, at this time.
Biden next proposed term limits for Supreme Court justices, outlining a system in which each president would appoint a justice every two years, and each justice would serve 18 years on the court. Biden observed that the United States “is the only major constitutional democracy that gives lifetime seats to its highest court.” Some democracies impose term limits, while others (like the United Kingdom) impose age limits.
Term limits, Biden wrote, “would reduce the chance that any single presidency radically alters the makeup of the court for generations to come.” Biden’s proposal did not address some of the questions that have arisen in connection with other discussions of term limits for Supreme Court justices, such as how the limits would be implemented and whether they could be put in place by statute or would instead require an amendment to the Constitution.
Biden’s third and final proposed change is a binding code of conduct for Supreme Court justices, who are not bound by the same code of conduct that applies to other federal judges. In the wake of revelations about (among other things) the failures of some of its members – most notably, Justices Clarence Thomas and Samuel Alito – to include luxury travel in their financial disclosures, the justices adopted a code of their own last November.
Biden dismissed the justices’ code of conduct as “weak and self-enforced.” “Justices,” he wrote, “should be required 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.”
In remarks last week at the annual conference held by the U.S. Court of Appeals for the 9th Circuit, which has jurisdiction over nine western states and two Pacific island jurisdictions, Justice Elena Kagan – who fields cases from the 9th Circuit – voiced support for an enforcement mechanism for the court’s ethics code.
Biden’s op-ed came a little less than four years after he announced, during the 2020 presidential campaign, that if elected he would form a bipartisan presidential commission to study changes to the Supreme Court. That commission issued its report in December 2021.
This post is also published on SCOTUSblog.
