Why Joe Biden changed his mind on Supreme Court reform

As his presidency draws to a close, Joe Biden has called for three profound reforms to America’s constitutional democracy.

In a statement Monday, President Biden advocated for a constitutional amendment that would effectively overturn a U.S. Supreme Court ruling in July that granted broad criminal immunity to former presidents. He asked Congress to adopt a binding rule of conduct for the Supreme Court. He also called for 18-year terms for judges.

Most experts agree the president’s demands are unlikely to be met before he leaves office. Critics counter that the proposals are an attempt by President Biden to destroy courts he disagrees with while energizing Democratic voters ahead of the November presidential election.

But public confidence in the Supreme Court is hovering near historic lows — the result of unpopular rulings and ethics scandals. An overwhelming majority of Americans support the reforms Mr. Biden has called for, according to recent polls, and past efforts to constrain the court have brought about changes.

“Historically, court reform has been difficult to enact,” said law professor Tara Leigh Grove. But “we have a system in place that can change it over time.”

As his presidency draws to a close, Joe Biden has called for three profound reforms to America’s constitutional democracy.

In a statement released Monday, he advocated for a constitutional amendment that would effectively overturn a U.S. Supreme Court ruling in July that granted broad criminal immunity to former presidents. He has asked Congress to adopt a binding rule of conduct for the Supreme Court. He also called for 18-year terms for justices.

Most experts agree that President Biden’s demands are unlikely to be met before he leaves office. Critics, meanwhile, counter that the proposals are an attempt by President Biden to destroy courts he disagrees with while energizing Democratic voters ahead of the November presidential election.

But public confidence in the Supreme Court is hovering near historic lows — a result of unpopular rulings and ethics scandals involving several justices. An overwhelming majority of Americans support the reforms Mr. Biden has called for, according to recent polls, and past efforts to constrain the court have brought about changes.

Experts say the Supreme Court, like any other institution, naturally changes as the tides of American politics shift — just much more slowly. Biden is trying to speed up the process, and while he may not succeed during his presidency, he may be laying the groundwork for more gradual change.

“Historically, court reform has been difficult to enact,” said Tara Leigh Grove, a professor at the University of Texas School of Law. “But courts, by design, are political constructs and can be changed over time through the institutions we have in place.”

What does Biden want?

Biden outlined the reforms he wants in a statement but gave few details. Column The Washington Post published the article on Monday.

First, he called for a constitutional amendment to provide for no immunity for former presidents for crimes committed while in office.

“No one is above the law,” he wrote in his opening statement. “Not the President of the United States, not even the justices of the Supreme Court.”

The proposal is a direct response to a Supreme Court ruling earlier this month that ruled 6-3 along ideological lines, for the first time granting a former president broad immunity from criminal prosecution.

The ruling was seen as another victory for conservatives since former President Donald Trump appointed three justices. Since 2022, conservative supermajorities have also expanded gun rights, repealed affirmative action in college admissions and overturned Roe v. Wade — all policies favored by Republicans.

In response, the Democrats accused the Supreme Court of being “captured” by the Republicans. Biden’s second proposal is that the justices should be subject to term limits.

He said in an opinion piece that he would support a system in which the president appoints a new justice every two years and “serves for 18 years.” Legal scholars say this could be implemented through legislation or a constitutional amendment.

Third, he called for a “binding code of conduct” for judges. Currently, he wrote, judges are subject to a voluntary code that is “weak and self-enforcing.” At the same time, he noted that federal court judges are subject to enforceable codes of conduct.

Professor Grove, a member of Biden’s Supreme Court commission, said that while it was “not a done deal,” there were “very strong arguments” that Congress could impose a binding code of ethics on judges.

Biden believes that comprehensive reform is needed now more than ever. He said his demands are based on his two decades as a member of the Senate Judiciary Committee. They also come from the commission he formed in 2021 to study Supreme Court reform.

Biden has overseen more Supreme Court nominations “than anyone today,” and as a result he has “great respect for our institutions and the separation of powers,” he wrote.

But “what’s happening now is not normal,” he added, “and it undermines public confidence in the court’s decisions.”

How will these reforms be implemented?

Biden can’t push through any of the reforms alone. The two Supreme Court reforms would require bipartisan action in Congress and would likely require review by the justices. A constitutional amendment would face a much tougher path: ratification by a supermajority of Congress and three-quarters of the states.

The Constitution spells out how the federal judiciary should operate, but it doesn’t provide many details. Congress has modified how the courts operate over the centuries, including changing the number of appeals courts and the number of Supreme Court justices. It also sets a retirement age for lower court judges.

Congressional Democrats have pointed to that history and said they intend to write legislation along the lines of the president’s proposed reforms. But they will face an uphill battle in a divided Congress, where Republicans have already slammed Biden’s efforts as politically motivated.

South Carolina Senator Lindsey Graham, the ranking member of the Judiciary Committee, wrote on Twitter on Monday that Democrats “will reshape any institution to ensure it works for them, not the country as a whole.”

He added: “I will oppose these so-called ‘reform’ measures with all my heart.”

What does the public think?

However, in the trial of public opinion, the reform does not seem to have encountered any difficulties.

Fox News Polls A poll conducted in early July found that 56% of voters disapproved of the court’s exemption decision, while 78% supported judges serving 18 years. (Republicans have a more favorable view of the exemption decision and the court in general, the survey showed.) A YouGov poll released last week showed that majorities of Americans in both parties Support both Term limits and an enforceable code of ethics for Supreme Court justices.

Last fall, the Supreme Court adopted its first-ever formal ethics code, but provided no enforcement. Last week, Justice Elena Kagan said in a speech in Sacramento, California, that the court “should try to develop some kind of (enforcement) mechanism.” Reported CNN. The justice floated the idea of ​​lower court judges holding justices accountable.

In addition to the question of whether the reform can be implemented, some scholars believe that the country needs to consider a more serious issue: should How will these reforms be implemented?

Professor Grove asked: “How would you feel if you kind of liked what the court was doing but you saw people you didn’t support politically trying to shape the court in their image?”

Some in the legal community are concerned not just about the content of the reforms, but also about the context in which they will be implemented. Thomas Griffith, a former judge on the U.S. Court of Appeals for the District of Columbia Circuit, said the proposed reforms are “rooted in dissatisfaction with judges’ decisions, and I’m concerned about that.”

Indeed, Biden’s op-ed begins and ends with references to the Supreme Court’s presidential immunity decisions. In addition, Judge Griffith, another member of the President’s commission, believes that the courts could benefit from some reforms, but not if those reforms are influenced by politics.

“There’s probably a lot we can do,” he added. “But we should do it out of a desire for good government and good process, not because people are unhappy with the decision.”

So, is reform unlikely to happen at this point?

It certainly won’t happen in the next six months, and it may not even happen in the next six years. But it’s worth noting that the Supreme Court has been quietly reforming itself.

For example, the court has continued to livestream oral arguments since the COVID-19 pandemic forced it to do so. Last year, after the court developed a formal code of ethics, Public attention The courts have also accused Justice Sonia Sotomayor of using court staff to organize her book tour and Justice Clarence Thomas and Justice Samuel Alito of failing to disclose decades of gifts from wealthy conservative donors.

Adoption of the code of ethics “is a direct result of public pressure,” said Christine Bird, associate professor of political science at Oklahoma State University.

She added that public support now for more substantive reforms like term limits “is something we wouldn’t have seen five or 10 years ago.” That said, she continued, “smaller changes are more likely than large-scale changes.”

Calls for Supreme Court reform are not new, or even unique to the Democratic Party. One could even argue that reform has always been afoot, albeit slowly. To paraphrase a ruling from last term, the Supreme Court, as an institution, is not Trapped in amber.

The Constitution does not provide for term limits for the federal judiciary, but lower court judges can achieve “superior status” More than a centuryThe country is currently debating whether similar principles should apply to judges.

Ethics reform is another example. Prior to the 1970s, the federal judiciary had no formal code of ethics. The ethics scandal of Justice Abe Fortas forced the courts to develop a code of ethics, but the Supreme Court was excluded, an omission that the United States is currently reexamining.

It has long been argued that the courts (and the institution itself) are different from other institutions and should exist above politics.

When Biden says what’s happening now is “not normal,” he’s saying the Supreme Court no longer behaves differently than other institutions. His proposed reforms are a response to that apparent shift. Some legal scholars say the changes he’s calling for would simply entrench the court in the political arena.

“I don’t want to argue with the president of the United States … but I think that’s normal,” Judge Griffith said. The court “is doing what it’s supposed to do, deciding the case before it and applying the law to the best of its ability.”

“Every judge swears an oath to judge impartially, and that is certainly an ideal,” he added. “When a judge does not act impartially, do you abandon that ideal? No, you redouble your efforts to achieve it.”