President Joe Biden on July 29 released a series of proposals for reforming the Supreme Court.
President Biden’s proposals, endorsed by likely Democratic nominee Vice President Kamala Harris, indicate the nation’s highest court will become an even bigger part of the tension surrounding the 2024 presidential election.
The White House said in a statement that the United States’ democratic institutions are facing a “crisis of confidence” and positioned the president’s proposals as attempts to “restore trust and accountability.”
Congressional Democrats welcomed the proposals. Leonard Leo, who leads The Federalist Society, a conservative legal group, disagreed with them.
1. Big Reforms
President Biden is pushing reforms that would be historic if enacted and would almost certainly spark legal battles that force a reconsideration of the Constitution’s separation of powers.The president is asking for a constitutional amendment that would clarify that presidents don’t enjoy immunity from criminal prosecution. The Supreme Court ruled in Trump v. United States that the Constitution provided partial immunity from criminal prosecution based on a president’s official acts.
Even if the amendment were to take effect, it isn’t clear how the Supreme Court would interpret the conflict it creates with the court’s view of the Constitution. The court’s opinion on immunity was based on precedent and another provision of the Constitution—Article II—vesting significant authority in the president.
Another of the president’s proposals is to impose term limits for Supreme Court justices.
Article III has long been considered to afford justices lifetime tenure. In an op-ed for The Washington Post, President Biden said on July 29 that he favors terms of 18 years of “active service” for justices.
Finally, the president has proposed that Congress “pass binding, enforceable conduct and ethics rules that require Justices 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.”
2. What’s Next?
Heading into the election, President Biden and Ms. Harris will need to lobby Congress and urge voters to support the proposed reforms.Constitutional amendments require state and national approval for ratification.
According to Article V of the Constitution, Congress can send the issue to the states after two-thirds of both the House and Senate approve an amendment. From there, three-fourths of the state legislatures or state ratifying conventions must also approve.
Article V allows a national convention to take the place of Congress in the initial step toward ratification.
Members of Congress will likely offer their opinions on the reform proposals and potential methods for ratification. Many members have already offered proposals of their own—including 18-year term limits.
House Speaker Mike Johnson (R-La.), in response to the reforms, said on July 29 that the proposal won’t be considered by the House for a vote, calling it “dead on arrival.”
Even if President Biden convinces a supermajority of Congress to pass his proposed amendments, they would likely have to reckon with shifting political majorities and a potentially lengthy ratification process.
The most recent time the country ratified a constitutional amendment was in 1992 with the 27th Amendment, which delays the onset of salary increases for members of Congress. That amendment was initially proposed in 1789.
Other amendments have tended not to be ratified for at least 100 days after their proposal. The Bill of Rights, which constitutes the first 10 amendments to the Constitution, took more than two years to ratify.
The president’s statements indicated that his proposed code of conduct would be made via legislation. That would require the usual majority of the House and Senate, assuming senators don’t attempt to filibuster the bill.
Neama Rahmani, a former federal prosecutor, praised the president’s proposals but said he doubts they will get very far in the current political environment.
“Biden’s proposals are great in theory, but practically speaking, they are non-starters,” Mr. Rahmani, who also sits on the UCLA Political Science Board of Advisers, told The Epoch Times via text message. “Politically, they are dead in the water, especially with an unpopular lame-duck president in an election year.”
3. 2024 Campaign
President Biden’s announcement and Ms. Harris’s backing suggest that Democrats intend to focus on the court as a campaign issue heading into the November elections.
The proposals are being made after a number of rulings in controversial cases by a court dominated by conservative justices, including three nominated by President Donald Trump. Most recently, the court overturned the decades-old Chevron deference doctrine, which afforded deference to agency interpretations of ambiguous statutes. The decision is expected to be a game-changer for regulation and administrative law.
The court also recently issued a landmark ruling on presidential immunity.
President Biden and Democrats have also repeatedly called attention to the Supreme Court’s 2022 decision to overturn Roe v. Wade, which held that the 14th Amendment protected a purported right to abortion.
“This Court has gutted civil rights protections, taken away a woman’s right to choose, and now granted Presidents broad immunity from prosecution for crimes they commit in office,” the White House’s statement read.
4. Prospects in Congress
Reactions from lawmakers have indicated that President Biden’s proposals won’t pass the current Congress or one in which Republicans hold power.Mr. Johnson, besides calling the reform plan “dead on arrival,” said that the proposals would “erode not only the rule of law but the American people’s faith in our system of justice.”
Meanwhile, congressional Democrats welcomed the proposals and renewed their calls for reform.
Senate Judiciary Chair Dick Durbin (D-Ill.) wrote on X, “I thank the President for bringing attention to the Supreme Court’s ethical crisis.”
House Oversight ranking Democrat member Jamie Raskin (D-Md.), who has been an outspoken proponent of reform, said on X, “President Biden’s slate of proposed reforms to the Court, including a binding ethics code, is right on time.” He referred to accusations that justices have received gifts unethically.
The Supreme Court released a code of ethics in November 2023 but encountered scrutiny for not including an enforcement mechanism.
5. Future Complications
A fully formed ethics bill will almost certainly face legal review from the court President Biden is seeking to regulate.He also refuted any ethical conflict when Senate Democrats pressed him about an upside-down American flag flying outside his house in 2021.
Chief Justice Roberts also declined a request from Democrat senators for an in-person meeting, citing concerns about the separation of powers, after they called for Justice Alito’s recusal from cases related to the Jan. 6, 2021, Capitol breach and the 2020 election.
It’s also difficult to predict what draft constitutional amendments would look like for term limits and presidential immunity. The Supreme Court’s decision on immunity was relatively complicated and multi-faceted and left finer details for the district court to determine.
Even if a supermajority of states and Congress agree to limit immunity, the question would remain how they would reconcile the amendment with Article II of the Constitution and court precedent. Article II vests the president with executive authority and has been cited by the Supreme Court in granting presidents both civil and criminal immunity.
