“Better late than never” is a useful maxim in all of life and in politics as well. On Monday, Joe Biden caught the “better late than never” bug when he unveiled a series of proposals to reform the US supreme court.
Those proposals come more than two and a half years after the US president’s presidential commission on the supreme court issued its recommendations, and more than 40 years after Biden called former president Franklin Delano Roosevelt’s plan to impose term limits on the court “boneheaded”.
In 2020, during his quest for the White House, Biden again distanced himself from people who were pushing for significant institutional reform at the court.
How times have changed. That was before the court overruled Roe v Wade, the ethics scandals of justices Samuel Alito and Clarence Thomas came to light, and before the court gave the president almost blanket immunity from criminal prosecution.
Biden announced his new thinking in a Washington Post op-ed, in which he detailed what he called “three bold reforms to restore trust and accountability to the court and our democracy”. They begin with a constitutional amendment designed to reverse the supreme court’s Trump v United States decision granting presidents immunity from criminal prosecution for their official acts.
Biden calls it the “No One Is Above the Law Amendment”. It would “make clear that there is no immunity for crimes a former president committed while in office”.
The second of Biden’s reform proposals would impose term limits on the justices who sit on the supreme court. It would institute “a system in which the president would appoint a justice every two years to spend 18 years in active service on the Supreme Court”.
Third, Biden called for enacting “a binding code of conduct for the Supreme Court”. Justices, Biden wrote, “should be required to disclose gifts, refrain from public political activity, and recuse themselves from cases in which they or their spouses have financial or other conflicts of interest”.
While each of these proposals is a wise response to the current crisis of the supreme court, none of them has any chance of being enacted in the near future. Still, Biden has done a service by going public with these ideas and politicizing the court reform question.
His op-ed and speech on court reform at an event commemorating the passage of the 1964 Civil Rights Act will help ensure that supreme court reform is a live issue during the remainder of the 2024 presidential campaign.
The first of Biden’s proposals, the call for a constitutional amendment, is the most important but also the most difficult to achieve among his three ideas. Like earlier versions of the same idea, it offers an important vehicle for engaging the public in resisting yet another exercise of judicial supremacy by our increasingly rogue supreme court.
America has a long history of using the amendment process to reverse repugnant supreme court decisions, like Trump v United States. But as Harvard Law’s Jill Lepore notes, over the long arc of American history, amending the constitution has “become a lost art”.
In fact, Lepore noted elsewhere: “The US Constitution hasn’t been meaningfully amended since 1971.”
However, by supporting an amendment to reverse Trump v United States, Biden has teed up a winning issue for Kamala Harris. Polls show that 65% of Americans do not think presidents should have immunity for actions taken in office.
Among independent voters, that number is 68%.
Even larger majorities support 18-year term limits for supreme court justices. As the Biden commission noted: “Up until the late 1960s, the average term of service was 15 years. It has now risen to roughly 26 years, and a number of Justices have served three or more decades, spanning numerous election cycles and presidential administrations.”
This may be why a Fox News Poll conducted earlier this month found that 78% of the respondents favor that idea. That is up from 66% in 2022.
While term limits are popular, it is unclear whether Congress could impose them by ordinary legislation or whether this proposal would also require a constitutional amendment. Even Biden’s supreme court commission was divided on that question.
As an article in Forbes explains: “Article III of the Constitution states judges ‘shall hold their Offices during good Behaviour,’ which has been interpreted to mean justices have to hold lifetime appointments. The commission said Congress could get around the issue by having only the most recent justices hear most cases, which originate in lower courts, while still keeping the older ones on to hear cases that originate in the Supreme Court.”
“That strategy … would create the ‘effective equivalent’ of term limits without actually violating Article III by kicking justices off the court.”
What is clear is that Donald Trump is on the wrong side of the supreme court term limits idea. Earlier this month, the former president branded court reform proposals such as term limits “illegal” and “unconstitutional”.
“The Democrats are attempting to interfere in the Presidential Election, and destroy our Justice System, by attacking their Political Opponent, ME, and our Honorable Supreme Court,” he posted on Truth Social. “We have to fight for our Fair and Independent Courts, and protect our Country.”
Trump is even out of step with his supporters on the idea of term limits for justices. Newsweek says: “Among those who voted for Trump in 2020, 54% supported term limits, while 20% opposed them.”
Finally, a Politico/Morning Consult poll conducted last September showed that “three-in-four voters want the justices bound to an ethics code, the most popular reform proposal in the survey”. This figure reflects what Politico calls “a bipartisan consensus of 81% of Democrats, 72% of Republicans, and 69% of independents”.
Here, too, Maga world is on the wrong side politically, as well as on the wrong side of history. Just last month, as NBC News reported, Senate Republicans “blocked a Democratic-sponsored bill that would have required Supreme Court justices to adopt a binding code of conduct”.
In the end, no matter how Biden’s proposals play out in the presidential contest, by politicizing the issue, by going public with them in a high-profile manner, the president has offered the people of the United States a chance to make their voices heard about the kind of supreme court they want. It is now up to all of us to take him up on that offer and use our votes to weigh in on this most important question.
Austin Sarat is a professor of jurisprudence and political science at Amherst College and the author of Lethal Injection and the False Promise of Humane Execution
