President Joe Biden is finalizing plans to propose significant reforms to the Supreme Court, including enforceable ethics rules and term limits for justices. This move comes amid growing public discontent with the court and recent scandals involving justices Clarence Thomas and Samuel Alito.
The U.S. Constitution allows Congress to regulate the federal court system, including the Supreme Court, despite its status as a separate branch of government. Historically, Congress has seldom taken such action, leaving much of the Court’s administration and rules, including its ethics standards, to be self-regulated. This self-regulation has allowed members like Justice Clarence Thomas to receive lavish financial gifts without consequence.
Biden’s plans, as reported by sources to The Washington Post, include establishing an enforceable ethics code and implementing tenure limits for justices. Additionally, Biden is considering endorsing a constitutional amendment to eliminate broad immunity standards for presidents and other officials, following a recent Supreme Court ruling that grants protections to presidents against future indictments for actions within their powers.
During a Zoom call with the Congressional Progressive Caucus on Saturday, Biden hinted at his upcoming initiative. “I’m going to need your help on the Supreme Court, because I’m about to come out—I don’t want to prematurely announce it—but I’m about to come out with a major initiative on limiting the Court,” Biden said.
Despite the significance of these proposals, the likelihood of a deeply-divided Congress passing any substantial changes to the Court is slim. A bill may pass in the Senate but could face a filibuster without a change in parliamentary rules. The prospects are even slimmer in the House of Representatives, where Republicans hold a majority and are unlikely to support limits on a Supreme Court that has delivered favorable rulings for them and former President Donald Trump.
However, Biden’s push for Supreme Court reform could provide a boost to his campaign and Democrats in Congress as the 2024 elections approach. A recent Fox News poll indicates that tenure limits for justices are strongly supported by U.S. voters. According to the poll, 60 percent of Americans disapprove of the current Supreme Court, the highest disapproval rating since Fox News began polling on the subject.
The poll also found that 78 percent of voters support imposing 18-year term limits on justices, who currently serve an average of about 28 years. Public disapproval of the Supreme Court has increased significantly since Trump appointed three conservative justices, leading to a perception that the Court has become too conservative. Only 19% of Americans view the Court as too liberal, while 33% believe its ideology is about right.
Ethics watchdogs have welcomed Biden’s proposed reforms. “The vast majority of the country, regardless of party, believes the justices should not serve for life but should be subject to basic oversight like Congress and the executive are,” said Gabe Roth, executive director of Fix the Court, a group advocating for Supreme Court reform.
The recent ethical breaches by justices have intensified scrutiny of the Court. Justice Clarence Thomas has been criticized for accepting free trips and gifts from a conservative mega-donor, while Justice Samuel Alito’s wife was seen flying two flags associated with the far-right movement loyal to Trump. These incidents have fueled calls for an enforceable ethics code for the justices.
Biden has faced pressure from progressives to address these issues. In his 2020 campaign, he vowed to create a commission to examine ways to address problems with the Supreme Court. He fulfilled this promise in April 2021, but after the commission’s report indicated “considerable, bipartisan support” for implementing tenure limits, Biden did not follow up, and the Court continues to operate without tenure limits or mandatory ethics rules.
With four months left until the presidential election, Biden, who is in a statistical dead heat with Trump, is trying to appeal to his party’s left flank, which supports an overhaul of the Supreme Court. The White House also believes that the issue polls well among independent voters, Republican voters, and a large swath of important demographic groups.
On Saturday, Biden discussed the plans with a group of progressive lawmakers, one of a series of calls he has held with Democrats to shore up support after he froze up in a debate last month with Trump, prompting questions about whether he should stay in his race for a second term.
Biden had planned to lay out his thinking about the court in a speech at the LBJ Library in Austin on Monday, timed to mark the 60th anniversary of the Civil Rights Act. However, the trip was postponed after the attempted assassination of Trump.
The Supreme Court has become a significant part of Biden’s campaign message. In an interview with BET News, Biden warned that two more justices would likely retire in the next four years. “Just imagine if he [Trump] has two more appointments on that, what that means, forever,” Biden said in excerpts released by the network.
The conservative majority on the Court, cemented by Trump’s appointments of Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, has delivered rulings that have raised concerns among progressives. At a fundraiser in Los Angeles, Biden referred to a report about Justice Alito’s wife raising an upside-down U.S. flag, a symbol associated with the Jan. 6 Capitol riot.
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