If President Joe Biden has his way, the Supreme Court justices would have term limits, a binding code of conduct and the court’s recent decision on presidential immunity would be called back.
In a three-part plan, Biden said he wanted “bold reforms” that would help “restore trust and accountability” to the court. Recent decisions by the justices–including overturning Roe v. Wade and expanding presidential immunity–mixed with justices’ recent ethics scandals, led him to call for judicial reform, he said.
“Undisclosed gifts to justices from individuals with interests in cases before the court, as well as conflicts of interest connected with Jan. 6 insurrectionists, raise legitimate questions about the court’s impartiality,” Biden wrote in an op-ed for The Washington Post. “I have overseen more Supreme Court nominations as senator, vice president and president than anyone living today. I have great respect for our institutions and the separation of powers. What is happening now is not normal, and it undermines the public’s confidence in the court’s decisions, including those impacting personal freedoms.”
Kamala Harris, the presumptive Democratic presidential nominee, said in a statement today that she supports the reform.
“President Biden and I strongly believe that the American people must have confidence in the Supreme Court. Yet today, there is a clear crisis of confidence facing the Supreme Court as its fairness has been called into question after numerous ethics scandals and decision after decision overturning long-standing precedent,” she said.
Biden is expected to go into more detail during a 4:30 p.m. EST speech commemorating the 60th anniversary of the Civil Rights Act. Here’s what’s included, and not included, in Biden’s judicial reform plan:
Term Limits for Supreme Court Justices
Article III Section I of the Constitution says justices “shall hold their Offices during good Behaviour,” which has traditionally been interpreted that the justices have a lifetime term except in very rare circumstances.
Similar to when Congress approved an amendment setting 10-year term limits for presidents in 1947 (ratified in 1951), Biden said Congress should set term limits for justices. Biden proposed a system in which a president would appoint a justice every two years for an 18-year term.
“The United States is the only major constitutional democracy that gives lifetime seats to its high court. Term limits would help ensure that the court’s membership changes with some regularity,” he wrote. “It would reduce the chance that any single presidency radically alters the makeup of the court for generations to come.”
A Constitutional Amendment to End Immunity for Crimes Presidents Commit in Office
Biden called for an amendment, calling it the No One Is Above the Law Amendment, that would dictate there is no immunity for former presidents who commit crimes in office.
The amendment is in response to the court’s July 1 ruling that former President Donald Trump is entitled to immunity from prosecution for official acts taken during his presidency but the immunity may not shield him from all acts to overturn the 2020 election. The 6-3 ruling, along ideological lines, sent the case to a trial judge to determine which acts in the indictment are official and which aren’t. This will likely delay the trial until after the upcoming November election.
“I share our Founders’ belief that the president’s power is limited, not absolute. We are a nation of laws — not of kings or dictators,” Biden wrote.
A Binding Code of Conduct for the Supreme Court
Biden also called on Congress to pass “binding, enforceable” conduct and ethics rules. As part of the code of conduct, justices would 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.”
Though Biden didn’t name names, experts say the proposal is likely in response to recent scrutiny over Justice Clarence Thomas receiving free trips and gifts from conservative donors, and Justice Samuel Alito’s wife flying flags associated with far-right groups.
“This is common sense. The court’s current voluntary ethics code is weak and self-enforced,” Biden wrote. “Every other federal judge is bound by an enforceable code of conduct, and there is no reason for the Supreme Court to be exempt.”
What’s Not Included
Biden did not propose increasing the number of justices on the Supreme Court in his plan. Calls to expand the Supreme Court have been popular among progressives as a way to counter the conservative supermajority.
