WASHINGTON (OSV News) -- President Joe Biden July 29 called for legislation and a constitutional amendment that would result in massive changes to the U.S. Supreme Court, including term limits for justices and an enforceable ethics code.
Biden, who recently announced he would end his 2024 reelection bid and endorse his running mate, Vice President Kamala Harris, for the Democratic Party’s nomination, was widely expected to release a plan to “reform” the court, as he sought input from lawmakers in the Congressional Progressive Caucus for his plan earlier in July.
Biden officially announced proposed changes to the Supreme Court, including term limits, during a visit to the Lyndon Johnson Presidential Library in Austin, Texas, to mark the 60th anniversary of the Civil Rights Act.
But earlier he laid out his proposal for reforms in an opinion piece published July 29 in The Washington Post. In it Biden argued some of the court’s recent decisions -- such as finding that presidents have immunity from criminal prosecution as it relates to core constitutional acts of their office and overturning Roe v. Wade -- undermined public trust in the institution.
“That’s why -- in the face of increasing threats to America’s democratic institutions -- I am calling for three bold reforms to restore trust and accountability to the court and our democracy,” he wrote.
Biden’s proposal called for a constitutional amendment called the No One Is Above the Law Amendment, in which lawmakers would codify “there is no immunity for crimes a former president committed while in office.” He further called for ending lifetime appointments to the Supreme Court in favor of a system “in which the president would appoint a justice every two years to spend 18 years in active service on the Supreme Court.”
The Supreme Court recently implemented a formal ethics code for justices it said was similar to that of other federal judges “but adapted to the unique institutional setting of the Supreme Court.” Critics of that code, including Biden, said it lacked a clear enforcement mechanism to ensure adherence. Biden said the court should be bound to an ethics code with an enforcement mechanism.
The announcement marked a major shift for Biden, a former chair of the Senate Judiciary Committee, in his approach to the court. But any of those proposals would currently face steep odds in a closely divided Congress.
In his comments at the Lyndon Johnson Presidential Library, Biden said in recent years “extreme opinions” delivered by the Supreme Court have undermined “long-established civil rights principles and protections.”
Biden argued the expansion of presidential immunity by the court could allow future presidents to scale back civil rights with impunity.
“We’re a nation of laws, not kings and dictators,” Biden said, arguing no other president has sought the type of immunity former President Donald Trump did in the case.
Biden said his proposals would ensure regular turnover at the high court and that no one president would have “undue influence for generations to come” over the institution.
Biden did not call to expand the Supreme Court, a noteworthy exclusion as such a move has been sought by some progressive critics of the court as a way to erode the current conservative majority. Critics of expanding the court sometimes refer to such proposals as “packing” the court.
Notre Dame Law School Professor Richard W. Garnett, a Supreme Court expert and concurrent political science professor, said in written comments that “there are interesting questions to consider about the power of Congress to regulate the Supreme Court’s justices and practices, and about proposals regarding term limits, retirement ages, and disclosure rules.”
“It is important, though, for the well-being of our democracy, that proposals for structural change do not reflect mere partisan dissatisfaction with particular rulings or election-year mobilization tactics,” Garnett said. “Partisan attacks on particular justices, and campaigns that undermine the Court for short-term political purposes, can only harm our constitutional order.”
Biden said analysis by the bipartisan Presidential Commission on the Supreme Court of the United States contributed to his proposal.
Kristen Waggoner, CEO, president, and general counsel for Alliance Defending Freedom, criticized the proposal in a statement, saying the judiciary must be “free from political coercion.”
“For this reason, our Founders separated power into three branches, one of which is an independent judiciary,” she said. “President Biden’s proposal to ‘reform’ the Supreme Court undermines this essential principle. Under the guise of protecting democracy, he would politicize and discredit the court by placing it firmly under the thumb of the political branches. And he would do so, ironically, because of his dissatisfaction with decisions by the court that defend separation of powers but that he disagrees with on political grounds.”
“Don’t be fooled,” Waggoner argued. “This move by President Biden has nothing to do with protecting the court and has everything to do with the Left’s desire to dominate every institution in society. And today that means launching political broadside attacks on our independent judiciary. Those attacks must be rejected.”
Maggie Jo Buchanan, managing director of Demand Justice, a progressive group that supports expanding the court as well as term limits and an enforceable ethics code for justices, praised Biden’s proposal, arguing it was “very welcome news.”
“The Supreme Court’s actions -- from unethical, politicized behavior to rulings that undermine basic freedoms and threaten the security of our very democracy -- run the risk of destroying the legitimacy of our courts in the eyes of the American people. Already, the overwhelming majority of Americans across the political spectrum think federal judges are too powerful,” Buchanan said in a statement. “Action is critical. We look forward to working to enact these, and all needed reforms, as quickly as possible in order to ensure that our courts work to protect the rights and well-being of every person in this country.”
The Senate Judiciary Committee previously announced that it will hold a full committee hearing on the impact of the Supreme Court’s presidential immunity decision in September.
