U.S. President Joe Biden on Monday
detailed his plan to reform the U.S. Supreme Court and address one of its most controversial recent decisions in an op-ed published by The Washington Post.
Vice President Kamala Harris, the presumptive Democratic presidential nominee, quickly endorsed his plan, which calls for term limits for Supreme Court justices, an enforceable code of ethics, and a constitutional amendment reversing the court's decision to
grant presidents broad immunity for official acts.
"These popular reforms will help to restore confidence in the court, strengthen our democracy, and ensure no one is above the law," Harris said in a statement.
"Americans deserve a Supreme Court they can trust. It's time for Congress to follow the White House's lead and take action to rein in this out-of-touch court."
After long resisting calls to push court reform, Biden
told progressive lawmakers he would propose a plan earlier this month. His shift came weeks after a series of court rulings that granted current and former U.S. presidents broad immunity; overturned the Chevron doctrine empowering federal agencies to rely on their expertise in crafting environmental, public health, labor, and other regulations; and supported the criminalization of homelessness.
The majority-conservative Supreme Court—three of whose members were appointed by former U.S. President Donald Trump—has also in recent years
reversedRoe v. Wade, ended affirmative action, and struck down Biden's student loan forgiveness program. It has done all this even as Justices Clarence Thomas and Samuel Alito have been at the center of a series of ethics scandals involving undisclosed gifts from right-wing billionaires and a refusal to recuse themselves from Trump's immunity case despite signals that they or their loved ones supported the January 6, 2021 insurrection to overturn the 2020 election results.
"What is happening now is not normal, and it undermines the public's confidence in the court's decisions, including those impacting personal freedoms," Biden wrote on Monday. "We now stand in a breach."
Biden first called for an amendment to the Constitution called the "No One Is Above the Law" amendment, which would address the court's decision on presidential immunity by clarifying that no president is broadly immune from criminal prosecution, including for official acts.
"We are a nation of laws—not of kings or dictators," Biden wrote.
Next, Biden backed a system of term limits for the court whereby a president would appoint one justice every two years to serve a total of 18 years.
"The United States is the only major constitutional democracy that gives lifetime seats to its high court," Biden noted. "Term limits would help ensure that the court's membership changes with some regularity. That would make timing for court nominations more predictable and less arbitrary. It would reduce the chance that any single presidency radically alters the makeup of the court for generations to come."
Finally, the president called for a binding ethics code, as every other federal judge is subject to.
"This is common sense," Biden wrote. "The court's current voluntary ethics code is weak and self-enforced. Justices 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."
Biden stopped short of endorsing court expansion, a move backed by many court reform advocates. It is also unlikely that any of Biden's proposals would currently pass the Republican-controlled House or win over the 60 votes needed in the Senate.
"President Biden's plan renews the system of checks and balances and also establishes binding ethics reforms for a court that has been embroiled in scandal in recent years."
Still, his proposal was welcomed by accountability and good governance groups.
"This is a remarkable and historical step forward on the path to reforming SCOTUS," Wendy Weiser, vice president for democracy at the Brennan Center for Justice, said on social media. "No one should have public power for so long; no one should be the judge in their own case; and no one should be above the law."
Craig Holman, Ph.D., government affairs lobbyist for Public Citizen, said in a statement: "The White House's endorsement of these critical court reforms comes at a time of increasing questions about the lack of transparency and accountability at the court. The White House's new calls for court reform will vastly boost the prospects of moving this reform legislation forward."
Public Citizen co-president Lisa Gilbert said that the group "enthusiastically supports this effort by the Biden-Harris administration and lawmakers to impose term limits and a binding code of ethics on the Supreme Court, and we applaud the support for an amendment to ensure that no president is above the law."
Stand Up America noted that court reform is widely popular with U.S. voters: A vast majority want Congress to pass reform, including 18-year term limits, and 78% want it to impose a code of ethics.
"Americans' confidence in the Supreme Court is at historic lows, which is no surprise given the Roberts Court's blatant disregard for ethical standards, long-standing precedent, and Americans' fundamental freedoms," Stand Up America's executive director, Christina Harvey, said. "We applaud President Biden and Vice President Harris for supporting urgently needed reforms to restore trust in our nation's highest court."
Stand Up America's founder and president Sean Eldridge said on social media that the 18-year term-limit proposal in particular was a "huge step forward for meaningful court reform."
Both Eldridge and Harvey noted that 49 out of 50 U.S. states impose either term limits or retirement ages on their top judges, or have them chosen via election.
"The Supreme Court should be the gold standard for judicial ethics, yet conservative justices have accepted millions of dollars in gifts, attended private retreats with billionaire conservative donors, and failed to meet legal disclosure requirements," Harvey said. "Americans deserve a Supreme Court they can trust. It's time for Congress to follow the White House's lead and take action to rein in this out-of-touch court."
The Congressional Progressive Caucus seemed ready to take up that challenge.
"We are grateful to President Biden for taking action on this longtime priority of the progressive movement to address the crisis facing our democracy," Reps. Pramila Jayapal (D-Wash.) and Hank Johnson (D-Ga.) said in a statement. "We call on our colleagues in Congress to protect the foundation of our country by passing the Judiciary Act to expand the Supreme Court; Supreme Court Ethics, Transparency, & Recusal Act (SCERT) to require a binding code of ethics and transparency measures for justices; and the TERM Act setting term limits for justices."
Another way Congress could act would be to put forward Rep. Ro Khanna's (D-Calif.) Supreme Court Term Limits and Regular Appointments Act, which journalist John Nichols noted had many things in common with Biden's proposal.
In a thread on social media, Nichols put the movement for court term limits in the context of U.S. history.
"The U.S. has since its founding regularly amended the Constitution to guard against an imperial presidency—including the term limits outlined in the 22nd Amendment and ratified in 1951. Now, President Biden proposes judicial term limits to guard against an imperial Supreme Court," he wrote.
After describing the president's plan, Nichols continued: "President Biden's plan renews the system of checks and balances and also establishes binding ethics reforms for a court that has been embroiled in scandal in recent years—as justices have refused to recuse themselves from cases where they have conflicts of interest."
