In some ways, there’s something enviable about Joe Biden’s position. As a lame duck, he now retains all the official powers of the presidency, but with much less scrutiny and accountability. He can ascend to no higher office than the one he has, and since he’s taken himself out of the race, he can no longer lose a job he has essentially already quit. He may have dwindling influence over a party that has already coalesced around the vice-president, Kamala Harris, as its new leader, but he retains the president’s bully pulpit in the absence of political consequence. What remains is a period in which Joe Biden can do more or less whatever he wants. And on Monday, he decided to embrace supreme court reform.
In an op-ed published in the Washington Post, and then in a speech he delivered in Austin, Texas, the president cited “dangerous and extreme decisions” by the court, along with a series of ethics scandals surrounding conservative justices, as justification for three major proposals. First, Biden called for a constitutional amendment that would clarify that presidents can be prosecuted for crimes they commit while in office, is a direct response to the court’s ruling that granted broad criminal immunity to Donald Trump in July’s Trump v United States.
That is not likely to happen: the burdens to passing any kind of constitutional amendment are prohibitive. But more crucially, the president embraced two policies that would dramatically alter the court’s functioning: a binding code of ethics for the justices – the only Article III judges who are not currently subject to one – and term limits that would allow presidents to appoint a new justice every two years, to serve 18-year terms.
The president’s proposed code of conduct would specifically forbid the justices from participating in activities like those of Clarence Thomas and Samuel Alito, who embroiled the court in controversy over the past several years, including receiving undisclosed gifts, participating in political activity and ruling in cases where they or their spouses are interested parties.
The proposed changes themselves have a long history of support amid the small but influential circle of US supreme court reform advocates, a group that has prominently featured lawmakers like Sheldon Whitehouse, a Rhode Island senator, and Ganesh Sitaraman, a Vanderbilt University law professor. An ethics code and term limits are generally thought to be the least ambitious and most politically palatable of the proposed reforms – which have also included more dramatic options like jurisdiction stripping, having justices rotate out of the court and “ride circuit”, and court expansion.
And though the justices have been historically hostile to any reforms that might curtail their personal power, an enforceable code of ethics has at least one advocate on the court itself: Justice Elena Kagan, in a public speech this month, called for the court’s current voluntary code of ethics to become mandatory and enforceable by lower court judges.
Biden’s proposals are not the most maximalist reforms that some court watchers have called for, and there is some reason to believe that absent more ambitious institutional interventions, like the addition of other judges, term limits and an ethics code might simply be struck down by the current justices – who, after all, have shown few qualms in restricting the power of the elected branches and reappropriating broad authorities to themselves.
There are those who argue, with some reason, that the court’s composition would need to change before an ethics code or term limits could be enforced and that court expansion must therefore be a first priority – not belated one. At any rate, any movement on court reform will first require sizable electoral wins in November: as it stands, the Republican-controlled House will not allow any measures to pass that would inhibit the court’s power and impunity.
Still, the move by Biden reflects a dramatic shift in the politics of the court and the willingness of top Democrats to advance judicial accountability measures. When Biden campaigned for the Democratic nomination in 2020, he was largely alone among his field in opposing most supreme court reforms; his concession to the demands of the court’s critics was to establish an almost comically toothless commission to investigate the question in 2021.
The commission’s recommendations were not binding, but that didn’t matter because in the end it made none. Its report was promptly shelved. Since the commission ended its work, the court has overturned Roe v Wade, banned large swaths of state-level gun control, ended the ability of federal agencies to use their own expert judgement in issuing regulations and effectively declared that presidents are above the law – or at least, that former president Trump is.
It’s unclear how many of these decisions could have been avoided or blunted if Biden had been willing to embrace court reform earlier. But it seems clear that he only developed the political will to do it now.
Will other Democrats follow him? Kamala Harris has. Her office put out a press release following the publication of Biden’s column, joining him in his calls for a binding ethics code and term limits. The reforms could make for a good pitch to a public whose opinion of the court has dropped dramatically over the past several years, and in particular in the wake of the Dobbs decision, as the court has issued highly partisan, ideologically charged opinions, often on 6-3 lines, that have dramatically changed the quality and prospects of Americans’ lives.
In a poll taken in July, in the days following the Trump immunity decision, the court’s approval was at just 38%; a record low, and a drop of 20 points since a March 2017 poll taken before Trump’s three appointees joined the court – and before a series a bombshell reports showed Clarence Thomas accepting the largesse of billionaires and Samuel Alito flying insurrectionist flags over his multiple homes. It used to be conventional wisdom to say that the court was bad politics for the Democrats, that their voters just didn’t care about it as much. That is no longer the case.
The justices see themselves as philosopher-kings. But the public, increasingly, sees them as corrupt, unaccountable idealogues. The president’s proposals offer a vision of a court that is less vulnerable to bribes; one whose composition is more responsive to elections, and less a matter of strategic retirements, poorly timed deaths and acts of God. These might not be practically achievable, but they are politically appealing, inviting Americans to imagine of a fairer, more reasonable way to arrange their judiciary. The announcement is not everything that court reform advocates have dreamed of. But it is a crucial acknowledgement of a reality that Democratic leadership has ignored for too long: the court is a political body and it needs to be treated as an electoral issue. It’s one they can win on.
Moira Donegan is a Guardian US columnist
