- Biden proposes broad reforms for the Supreme Court
- Key reforms: term limits, conduct rules, amendment
- Reforms aimed at restoring public trust in court
For decades, calls to alter the United States Supreme Court have echoed through the political environment, fueled by scandal and criticism of the institution’s alleged political bent.
In the last year alone, two justices have been accused of accepting luxurious vacations from Republican contributors. One was found flying political flags outside his home, one of several incidents that have raised concerns about the court’s neutrality. Experts, however, believe that President Joe Biden’s decision on Monday to propose broad reforms to the court represents a watershed moment.
Biden had previously distanced himself from such efforts to reform the court. This week’s decision, however, to officially support a package of reforms marks a shift in mainstream politics.
“Joe Biden isn’t a radical.” “He is an institutionalist,” said Devon Ombres, senior director of courts and legal reform at the Center for American Progress (CAP), which has long fought for court reform.
Ombres described Biden’s request as a “canary in the coal mine,” demonstrating how vital reforms have become.
For him to reach this position, I believe, demonstrates that the current Supreme Court has exceeded our expectations.
A turning point.
Biden, the top Democrat on the Senate Judiciary Committee, opposed such reforms during his 36-year tenure in Congress.
He also distanced himself from efforts to reshape the court during the 2020 Democratic primary season, when he emerged as the party’s presidential nominee.
In 2021, as president, Biden issued an executive order establishing a commission to investigate potential judicial changes. However, in the two and a half years since the commission’s final report, Biden has mainly avoided commenting on its findings.
This changed on Monday. In introducing his proposed reforms, Biden stated that change was required to restore public trust in the Supreme Court, an institution charged with making final decisions on US law and fundamental rights.
What is happening now is abnormal, and it weakens the public’s trust in the court’s decisions, even those affecting personal liberties, Biden wrote in a Washington Post editorial, admitting the court’s conservative shift and the ethical scandals of the previous year.
Biden’s push comes during a pivotal election year. Vice President Kamala Harris is running for president as Biden’s heir apparent, taking on Republican candidate Donald Trump, and control of Congress is at stake.
Thomas Moylan Keck, a constitutional law and politics professor at Syracuse University, believes Biden’s idea will fail in the current severely divided Congress.
He did, however, point out that it could pave the way for future changes. Harris has already declared she supports the proposals.
“The point of it, in the short term, is symbolic,” Keck said, emphasizing Biden’s public image as a “moderate Democrat and institutionalist”.
However, Biden’s newfound support for these concepts should help Democratic members of Congress and Democratic supporters in the electorate become more familiar with them.
Biden’s display of support might be beneficial if the Democrats win large in November, he continued, as it could clear the path for the party to implement the reforms.
If and when Democrats gain control of both houses of Congress and the White House at the same time, perhaps they will be prepared to run with at least part of it.
What exactly does Biden’s proposal say?
Biden’s approach focuses on three key areas of improvement.
First, he proposed term limitations for Supreme Court judges, who presently serve for life unless they voluntarily leave or are impeached.
Biden stated in the Washington Post that the United States is the only major constitutional democracy that offers its Supreme Court lifelong seats.
Under Biden’s proposals, each justice would serve for no more than 18 years, with the president selecting a new justice every two years.
That would make the scheduling of court appointments more predictable and less arbitrary, Biden said.
His second proposal was for Congress to enact a standardized and enforced rule of conduct for Supreme Court justices. This would entail disclosing gifts, refraining from public political action, and recusing themselves from instances in which they or their spouses had a financial or other conflict of interest, he wrote.
These new safeguards would supersede the self-enforced ethics rule issued by the Supreme Court last year, which government monitoring organizations criticized as inadequate.
The third suggestion argues for a constitutional amendment that would overturn the court’s contentious judgment that affords US presidents broad immunity from criminal prosecution.
Biden named the proposed change the “No One Is Above the Law Amendment”. He referenced former President Trump’s alleged involvement in the storming of the US Capitol on January 6, 2021, as an example of how such an amendment may be used.
“If a future president incites a violent mob to storm the Capitol and stop the peaceful transfer of power — like we saw on January 6, 2021 — there may be no legal consequences,” he tweeted.
However, experts say these three plans are unlikely to succeed, at least in the near term.
Constitutional amendments, for example, are exceedingly unusual in the United States. They must be introduced with two-thirds support in the United States House and Senate, followed by three-fourths approval in all 50 state legislatures across the country.
The White House has also provided only broad frameworks for the initiatives, leaving details unknown. Notably, the recommendations concentrate on reforms that currently have widespread public support, while avoiding more risky initiatives, such as requests to increase the number of judges on the court.
Why advocate for reform now?
The idea of restructuring the Supreme Court has been floating around in American political and legal circles for years, and it has occasionally received bipartisan support. However, recent developments have accelerated the call for reform.
During Trump’s presidency, the court’s ideological complexion shifted dramatically between 2017 and 2021. Trump and the Republican-controlled Senate had a unique opportunity to nominate and confirm three young, hardline conservative justices: Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.
This resulted in a conservative 6-3 supermajority that is projected to dominate the court for the foreseeable future.
Since then, the justices, who are frequently divided ideologically, have made several important decisions. They eliminated federal abortion laws, repealed affirmative action policies in higher education, and recently concluded that presidents should be presumed immune to all official actions.
Some justices, including conservatives Samuel Alito and Clarence Thomas, have received costly gifts and travelled in luxury, according to news accounts.
Both Alito and Thomas have faced questions about their wives’ political activity, raising concerns about the court’s integrity and capacity to assess issues impartially.
Critics also pointed out that Biden’s Supreme Court suggestions came less than 100 days before the national elections in November. Democrats have publicly stated that voting for their party is motivated by the desire to reform the Supreme Court.
Senator Elizabeth Warren was forthright when she spoke to CNN. “The Supreme Court appears on the ballot. And it is a solid reason to support Kamala Harris and Democrats in both the Senate and the House,” she stated.
Recent Supreme Court judgments, particularly on abortion, voting rights, and presidential immunity, have already dominated this election season.
What have the opponents said?
Republicans, on the other hand, have been eager to criticize Biden’s initiatives, vowing to oppose them.
Senate Minority Leader Mitch McConnell, for example, quickly condemned Biden’s effort as “unconstitutional,” warning that the reforms, notably term limits, would be “dead on arrival” in Congress.
Other critics have gone even further, accusing Biden of wanting the changes solely because he is philosophically opposed to the court’s existing membership.
Oklahoma Senator Markwayne Mullin described the reforms as a “toxic power grab”. Meanwhile, Louisiana Senator Bill Cassidy accused Biden of attempting to “overthrow the US Constitution because you don’t like the results”.
Even reform proponents have expressed concerns about Biden’s announcement.
Chris Truax, a spokeswoman for the conservative nonprofit Society for the Rule of Law, wrote for The Hill that, while judicial improvements are necessary, big changes should only be implemented with broad consent.
“Anything else is dirty pool,” he stated.
Meanwhile, Democratic Senator Ed Markey, who has long advocated for court reform, praised Biden’s recommendations as “significant steps.” Nonetheless, he stated that any serious reform needed requires increasing the number of justices on the Supreme Court, a measure regarded as more politically sensitive than Biden’s proposals.
“Only then will Americans be able to look at the Court with respect and reverence, not disgust and despair,” Markey told the crowd.
How does this affect the election?
However, public opinion polls suggest that Americans may be open to Biden’s reform push.
Last year, the Pew Research Center discovered that the court’s approval rating had dropped to its lowest level since 1987. An estimated 54 per cent of Americans had a negative attitude toward the court. In 2023, only 24% of Democrats had a favourable opinion of the court, down from 67% two years earlier.
A survey conducted by the progressive think tank Data for Progress revealed that nearly three-quarters of people support term limits. The majority of Democrats, independents, and Republicans supported the reform, according to the report.
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According to Keck, a Syracuse University professor, public support for the court has been declining in recent polls.
“So, in theory, that creates some space for a capable political leader to speak to those concerns.”
Ombres, the legal reform analyst, added that it will be difficult to predict how voters will react to the suggestions.
Already, he noted, it has been an unusual election year, with various upheavals, including an assassination attempt on Trump and Biden’s withdrawal from the campaign within the last month.
However, he emphasized that policymakers and advocates should take advantage of the political tailwinds and begin the process of developing a reform package right away.
Ombres stated that the brain trusts must come together and declare, “This is what we want.”
