A week after taking himself off the November ballot, President Joe Biden has floated a rough outline to rehabilitate public trust in the U.S. Supreme Court.
The plan — which comes after a string of terms in which the court’s conservative supermajority preached judicial restraint while gutting landmark precedents — is entirely unattainable in the short term. And it’s thin on details. Among the open questions is whether some of the proposed reforms could withstand efforts by the Supreme Court itself to strike them down.
“We can and must prevent the abuse of presidential power and restore faith in the Supreme Court,” Biden said in a speech Monday afternoon in Austin, where he rehashed his proposals without fleshing out the logistics.
Yet the move signals a key shift in the political discourse: Once the stuff of progressive pipe dreams, now even staunch centrists like Biden and Vice President Kamala Harris, the presumptive Democratic presidential nominee who quickly co-signed the president’s proposals, want to address the court’s outsized power.
Though Biden stopped short of proposing to expand the court to even out its ideological imbalance, which a slight majority of Americans have endorsed in recent polling, the announcement marks a course change for the president. Biden, an institutionalist who defended the filibuster until the Dobbs decision in 2022, has finally started playing checks-and-balances chicken with a judiciary that continues to consolidate its own authority while pretending to be above the political fray.
As previewed in an op-ed for the Washington Post, Biden’s plan has three basic proposals. First is to override the court’s recent decision about far-reaching presidential immunity by amending the Constitution itself. Although fanciful given the difficulty of the constitutional amendment process, this is also Biden’s most concrete proposal. Unlike his other proposals, this one includes a specific mechanism of binding the court to 21st-century realities about presidential power, instead of cherrypicking from the musings of Alexander Hamilton and his fellow founders.
So far, Biden hasn’t proposed how he might accomplish his other two proposals: an 18-year term limit for Supreme Court justices, and an enforceable ethics code. Both provisions implicate Justice Clarence Thomas, who has been on the country’s highest bench since 1991 and who refused to recuse from cases stemming from the January 6 insurrection this term despite his wife’s deep involvement in Donald Trump’s “Stop the Steal” efforts to reverse his loss in the 2020 election.
There are serious debates about whether these two measures would require constitutional amendments or if Congress has the authority to enact them in some fashion through legislation. The cross-ideological commission Biden appointed in 2021 — before the Supreme Court tossed Roe v. Wade and other bedrock doctrines — produced almost 300 pages of collective, heavily footnoted shrugs on such questions.
Many Democrats are eager to at least try the legislation route, even if court reform bills will just wind up before the Supreme Court upon inevitable challenge.
“It’s time for Congress to take significant action on Supreme Court ethics and term limits reform,” Sen. Sheldon Whitehouse, D-R.I., wrote on X following Biden’s proposal. “I’ve got legislation to get it done.”
Whitehouse’s bill, which would create a process to disqualify justices from particular cases and require the Supreme Court to draft its own ethics code, among other provisions, has dozens of co-sponsors and passed favorably out of the Judiciary Committee but is unlikely to pass the full Senate.
Setting aside, again, the moonshot logistics and the unresolved particulars, Biden’s announcement is significant for its frank, if belated, diagnosis: There aren’t meaningful checks on the Supreme Court.
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