Biden’s Last Project: Fix a Supreme Court in Desperate Need of Reform
The Court has forced the president’s hand.
ON MONDAY, AT AN EVENT IN AUSTIN, TEXAS to honor the Civil Rights Act, President Joe Biden will announce a three-part proposal to reform the Supreme Court.
His pledge is long overdue. It’s also crucial for the survival of American democracy.
Biden was late to this. Just a few months after taking office, he signed an executive order establishing a presidential commission on Supreme Court reform, which filed a 243-page report in December of 2021. It was widely seen as a punt, with the commission refusing to take a position one way or another on the matter. And, sure enough, the White House never revisited it.
Since then, the Court has overturned Roe v. Wade, greenlighted racial gerrymandering, declared affirmative action admissions at universities unconstitutional, supplanted reasonable gun laws while turning judges into amateur firearms historians, and, most egregiously, turned presidents into kings perched above the nation’s criminal laws.
Biden now is not only incorporating major aspects of the commission’s report, but going even further. As he must. While critics may argue that he is acting politically, it is, in fact, the Court that did so, forcing this type of response.
While other news from the White House is being billed as “Harris-Biden Administration” policies, undoubtedly to help anoint Kamala Harris as the legitimate successor to the presidency in November, this one is all Joe Biden. In his third State of the Union address in March, Biden directly challenged the conservative justices’ decision to extinguish the constitutional right to make pregnancy-termination decisions. “With all due respect, justices, women are not without . . . electoral or political power,” he said. “You’re about to realize just how much.”
Now that Biden has relinquished the Democratic nomination for president, it’s not lost on him that the Supreme Court has, since that speech, vastly expanded the power of the very office that he leaves behind in January. Clipping the Court’s wings is a nod to democracy as well. If it’s successful (which is unlikely), it would be the last great legacy for Biden—and an eminently worthy one, because the Court has been acting in ways that are antithetical to the rule of law.
Biden’s plan has three parts.
First, he is calling for a “No One Is Above the Law Amendment” to the Constitution, stating that, contrary to the Supreme Court’s outrageous ruling in Trump v. U.S., the country’s foundational charter for government by the people “does not confer any immunity from federal criminal indictment, trial, conviction, or sentencing by virtue of previously serving as President.”
This comes on the heels of a proposal in the House of Representatives for a similar amendment to the Constitution, which would additionally provide that presidents cannot pardon themselves if, by virtue of the amendment’s ban on criminal immunity, they are charged or convicted with crimes committed using the official power of the office. The amendment is vital to ensuring that presidents don’t use their unparalleled authority to criminally entrench their own power—something that seems destined to happen if Donald Trump secures the White House a second time.
Second, Biden is proposing eighteen-year term limits for Supreme Court justices—a change that would also require a constitutional amendment, because Article III of the Constitution effectively gives the justices a job for life absent impeachment. According to the commission’s report, “a bipartisan group of experienced Supreme Court practitioners concluded that an eighteen-year non-renewable term ‘warrants serious consideration.’” The report noted that “major think tanks and their leaders” as well as “both liberal and conservative constitutional scholars” also see virtue in eighteen-year term limits.
In addition to eighteen-year terms, Biden’s proposal would allow for a president to appoint a new justice every two years, which would ensure that no single president—not to mention his or her political party—gets to dominate the Court’s composition for generations to come. In making the announcement, the White House noted that “the United States is the only major constitutional democracy that gives lifetime seats to its high court Justices.”
Although the justices-as-kings model is structurally anti-democratic, it has worked for centuries. But not anymore.
It was not until former Senate Majority Leader Mitch McConnell (R-Ky.) blocked President Barack Obama’s appointment of Merrick Garland to the Court—then did away with the filibuster for Supreme Court nominees and ushered in three Trump appointees—that reining in the Court’s power became so urgent.
Third, Biden is putting his weight behind legislation that would impose an enforceable code of conduct for the justices. This is a no-brainer, and the fact that the Democratic-controlled Senate hasn’t done anything about the dramatic conflicts of interest on the part of Justices Clarence Thomas and Samuel Alito—including even holding hearings to publicly air how dangerous their conflicts are—is unfathomable. Biden would “require Justices 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.” That’s the kind of standard that already applies to every other federal judge and thousands of other federal officials and employees who hold far less powerful offices than the justices do. It should have applied long ago to the highest court too.
As the hours tick by before November 5, the country’s focus is on the presidential election and staving off the threat of a Trumpian dictatorship. But what Biden’s announcement recognizes is that another dictatorship has already germinated in a different branch of government—the one with inhabitants in black robes who cannot be stopped at the ballot box.
The Senate filibuster still applies to routine legislation, rendering meaningful Supreme Court ethics reform totally dead on arrival. A constitutional amendment would be even harder to achieve, requiring supermajority support in both Houses of Congress and in state legislatures—a total impossibility. But in the waning months of Joe Biden’s half-century of public service, with millions of eyes watching his moves with great interest and even affection, his decision to sound the alarm about the abuses occurring on the Supreme Court is still an immensely critical one.
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