Laurence Tribe, a constitutional law scholar who has advised Joe Biden as the president prepares to back dramatic reforms to the US supreme court, has criticized the court’s ultraconservative justices for acting as a “center of self-aggrandizement” threatening the checks and balances on which the US has historically depended.
In comments to the Guardian a day after news broke of Biden’s plans to endorse major changes to the country’s most powerful court, the Harvard Law School professor said the justices were out of step with basic constitutional premises. The court had “reached the point of assuming ultimate power over our entire legal and political system”.
He accused the supermajority of “essentially destroying the framework of checks and balances” that had maintained an uneasy equilibrium “over the course of our history”.
On Monday the Washington Post revealed Biden’s intention to support major plans to restrain the supreme court. The ideas reportedly being considered include term limits for justices, an ethics code armed with real teeth, as well as a possible constitutional amendment to overturn the justices’ highly controversial decision to grant Donald Trump broad presidential immunity from criminal prosecution.
The Post reported that in preparation for an announcement, expected within weeks, Biden had turned to Tribe as an authority on constitutional law. They discussed Tribe’s blueprint for supreme court reform set out in a Guardian opinion article earlier this month, the newspaper said.
Tribe declined on Tuesday to talk about their conversations. But he shared with the Guardian his personal thoughts about what must be done to correct some of the court’s most flagrant abuses.
He gave a withering assessment of the hard-right supermajority that controls the court following Trump’s three appointments. The six conservative justices had discarded the judicial self-constraint that the framers of the constitution had intended for the “least dangerous” branch of government.
The court had overturned “decades of precedent for no better reason than that it now has the votes to do so”.
Tribe blamed the supreme court for systematically rolling back the past half-century of progress on voting and human rights. He listed advances that had been laid waste in recent years, including: “Reproductive liberty, gender equality, sexual autonomy, racial justice, police abuse and government accountability.”
He warned there could be no quick fix for the court’s “outlandish excesses”. But he sketched reforms that, over time, could put the court back on the rails.
One of Tribe’s most favored changes appears to fall outside Biden’s plans: enlarging the nine-person court with four extra seats to offset Trump’s “stacking of the court”. Tribe embraced enlarging the court in his role as a member of the commission formed by Biden in 2021 looking into supreme court reform.
But he told the Guardian that, speaking only for himself, he would be “loth to urge the president at this point to reverse his deep-rooted opposition to court expansion”.
The Harvard professor said that there was growing consensus behind term limits for justices. Presidents should make two appointments to the supreme court in each four-year White House term.
New appointments would then serve for 18 years as active justices, followed by lifetime service as a retired judge who could fill in for a recused colleague when required. Such a two-tier system has thrived in lower courts for more than a century.
Tribe said the shift to a term-limited system – which would be prospective only, not affecting the current nine justices – could be legislated by Congress.
“No other apex court in the world entrusts remotely so much power to so few individuals for so long – essentially for life,” he said.
Biden also appears minded to endorse an enforceable ethics code, to replace the voluntary guidelines which the court adopted last November amid mounting criticism of Clarence Thomas and Samuel Alito. Tribe said he believed such a reform was now urgently needed, as a way to save the court “from its own worst tendencies”.
The law professor called the present system untenable. With no outside mechanism for enforcing ethical rules, such as disclosure of gifts from rich patrons, the court was in effect “expected to police itself”.
That remained the case even when justices appeared “prone to get away with as much exploitation of their prestigious positions as they can”.
Like term limits, an enforceable ethics code would require congressional legislation. Both would be a tough proposition given the present partisan divide and the need for 60 Senate votes under the filibuster.
Such reforms would look easy compared with the other major reform being considered by Biden relating to presidential immunity. This would require a constitutional amendment that would have to negotiate the convoluted rules for changing the US constitution (two-thirds support in both chambers of Congress, or two-thirds of the states in a convention, followed by ratification by three-quarters of state legislatures).
What was now needed, Tribe said, was a “No Person Is Above the Law” amendment which would insert language into the constitution making clear that nobody – including the president – could claim immunity from criminal prosecution by virtue of their office.
Tribe said that he also wanted to see an amendment constraining a president’s pardon power so that a lawless incumbent of the Oval Office could not pardon themselves or anyone else whom they encouraged to commit crimes on their behalf.
Taken together, these changes would return to the supreme court the public respect it had lost, Tribe said. They would correct the court’s partisan majority which now acts as though it were “all-knowing and essentially infallible, paying virtually no heed to the opinions of its predecessors or of the American people”.
