President Joe Biden recently proposed sweeping changes to the U.S. Supreme Court, including enforceable ethics codes, term limits for justices, and a constitutional amendment to limit the justices’ recent decision on presidential immunity. While these proposals are unlikely to pass in a closely divided Congress, they have certainly ignited a heated debate. With public confidence in the court at an all-time low and a contentious presidential election looming, it’s crucial to examine these proposals critically.

Term Limits for Justices: A Flawed Concept

Limiting Supreme Court justices’ terms has broad public support. According to a July 2022 poll from The Associated Press-NORC Center for Public Affairs Research, 67% of Americans support term limits, including 82% of Democrats and 57% of Republicans. Biden’s proposal suggests 18-year terms, aiming to make nominations more predictable and reduce the potential for any single president to unduly influence the court.

However, the Constitution grants federal judges lifetime tenure unless they resign, retire, or are removed. Implementing term limits without a constitutional amendment is legally dubious and could face significant challenges in court. If such a law were passed and challenged, the very justices it targets could be ruling on its constitutionality, leading to an unpredictable outcome.

Enforcing a Code of Ethics: A Double-Edged Sword

The Supreme Court only adopted a formal code of ethics last year after sustained criticism over undisclosed trips and gifts received by some justices. Biden argues that this code needs an enforcement mechanism, akin to the rules governing members of Congress, who generally can’t accept gifts worth more than $50.

While ethical oversight is essential, enforcing it presents complex questions. Who would enforce this code, and how? Lower courts’ discipline processes are not designed to police their codes of ethics directly, suggesting similar challenges for the Supreme Court. The Judicial Conference, headed by Chief Justice John Roberts, oversees the ethical code but might be reluctant to use its power against colleagues, raising concerns about the effectiveness of any enforcement mechanism.

Presidential Immunity: A Dangerous Precedent

Biden’s proposal includes a constitutional amendment to limit the Supreme Court’s decision granting broad immunity to former presidents from criminal prosecution. The amendment would clarify that no former president is immune from prosecution for crimes committed while in office.

Amending the Constitution is an arduous process requiring support from two-thirds of both the House and Senate and ratification by three-quarters of state legislatures. Given the current political climate, this proposal is unlikely to gain the necessary support. Furthermore, Republican House Speaker Mike Johnson has already labeled Biden’s proposal a “dangerous gambit,” predicting its failure in the House.

Biden’s Reluctance to Reform: A Political Strategy?

As a former chairman of the Senate Judiciary Committee, Biden has historically resisted calls for Supreme Court reform. In 2021, he convened a commission to study potential changes to the court but cautioned against excessive reforms that could undermine democracy. His current proposals come amid growing Democratic frustration with recent conservative-majority court decisions on abortion rights and federal regulatory powers.

Even if these proposals have little chance of passing, they serve to draw voter attention during a hotly contested presidential election. Vice President Kamala Harris, whom Biden endorsed for president, supports the proposals, highlighting their political motivations.

Conclusion

President Biden’s proposed Supreme Court reforms appear more symbolic than practical, aiming to galvanize Democratic voters rather than enact feasible change. While ethical oversight and judicial accountability are critical issues, the path Biden suggests is fraught with constitutional and political hurdles. As conservatives like activist Leonard Leo argue, these proposals seem more about undermining a court that Democrats disagree with than about genuine reform. As Election Day approaches, it’s crucial for voters to see through the political posturing and consider the long-term implications of such proposals.

References

• Associated Press-NORC Center for Public Affairs Research. (2022). “Poll on Supreme Court Term Limits.”
• Washington Post. (2024). “Biden’s Opinion Piece on Presidential Immunity.”
• Indiana University, Charles Geyh. “Expert on Judicial Ethics.”