Why Joe Biden changed his mind about Supreme Court reforms

Heading into the final months of his presidency, Joe Biden has called for three profound reforms to U.S. constitutional democracy.

In an announcement Monday, he advocated for a constitutional amendment that would effectively reverse a July U.S. Supreme Court decision granting broad criminal immunity to former presidents. He has asked Congress to pass a binding code of conduct for the Supreme Court. And he called for the justices to be subject to 18-year term limits.

President Biden’s demands are unlikely to be realized before he leaves office, most experts agree. Critics have, meanwhile, hit back at the proposals as an effort by President Biden to destroy a court he disagrees with while energizing Democratic voters ahead of the November presidential election.

But public confidence in the high court is hovering near record lows – a result of both unpopular decisions and ethics scandals surrounding several justices. A sizable majority of Americans support the reforms Mr. Biden is asking for, according to recent polls, and court-curbing efforts have led to changes in the past.

The Supreme Court, as much as any other institution, naturally shifts with America’s changing political tides – just much, much more slowly, experts say. Mr. Biden is trying to accelerate that process, and while he likely won’t succeed during his tenure as president, he may be laying the groundwork for more gradual changes.

“Court reform has historically been very difficult to enact,” says Tara Leigh Grove, a professor at the University of Texas School of Law. But “it’s by design a politically constructed court, and [it] can be changed over time through the system we have.”

What does Biden want?

With few specifics, Mr. Biden outlined his desired reforms in an op-ed published by The Washington Post on Monday.

First, he is calling for a constitutional amendment saying that former presidents have no immunity for crimes committed while they were in office.

“No one is above the law. Not the president of the United States. Not a justice on the Supreme Court,” he wrote in the opening paragraph.

The proposal is a direct response to a Supreme Court decision earlier this month. In a 6-3 ruling along ideological lines, the court held for the first time that a former president has broad immunity from criminal prosecution.

The decision has come to be seen as another victory for conservatives since former President Donald Trump appointed three justices to the court. Since 2022, the conservative supermajority has also expanded gun rights, abolished affirmative action in college admissions, and overturned Roe v. Wade – all policies favored by Republicans.

In response, Democrats have accused the Supreme Court of being “captured” by the GOP. And Mr. Biden’s second proposal is that justices be subject to term limits.

In his op-ed, he said he would support a system in which the president appoints a new justice every two years to spend 18 years “in active service.” This could be instituted through legislation or a constitutional amendment, legal scholars say.

Third, he is asking for a “binding code of conduct” for justices. Currently, they are subject to a voluntary code that is “weak and self-enforced,” he wrote. Meanwhile, federal court judges, he noted, are all bound by an enforceable code of conduct.

Professor Grove, a member of Mr. Biden’s Supreme Court commission, says that while it’s “not a slam dunk,” there’s “a very strong argument” that Congress could impose a binding ethics code on the justices.

Mr. Biden argues that sweeping changes are needed now more than ever. His demands, he says, are informed by his two decades of experience as a member of the Senate Judiciary Committee. They’re also informed by a commission to study Supreme Court reform that he assembled in 2021.

Mr. Biden has overseen more high court nominations “than anyone living today,” he wrote, and he thus has “great respect for our institutions and the separation of powers.”

But “what is happening now is not normal,” he added, “and it undermines the public’s confidence in the court’s decisions.”

How could these reforms be implemented?

Mr. Biden can’t push through any of these reforms himself. The two Supreme Court reforms would require bipartisan action from Congress – and would also likely need to survive review by the justices themselves. The constitutional amendment would face an even tougher road: ratification by a supermajority of Congress and three-fourths of the states.  

The Constitution details how the federal judiciary should function, but it doesn’t provide many details. For centuries, Congress has tinkered with how courts operate, including changing the number of appeals courts and the number of Supreme Court justices. It also implemented retirement ages for lower court judges.

Democrats in Congress have pointed to this history, and said they intend to pursue legislation in line with the president’s proposed reforms. But they would face an uphill battle in a divided Congress, where Republicans have already been blasting Mr. Biden’s efforts as politically motivated. 

Democrats “will reshape any institution to make sure it performs for them, not the country as a whole,” wrote South Carolina Sen. Lindsey Graham, the ranking member of the Judiciary Committee, on the social platform X on Monday.

“I will wholeheartedly oppose these so-called ‘reform’ measures,” he added.

What does the public think?

Where the reforms don’t seem to be struggling, however, is the court of public opinion.

A Fox News survey conducted in early July found that 56% of voters disapprove of the court’s immunity decision, while 78% support an 18-year term limit for justices. (Republicans have more favorable views of the immunity decision, and the court in general, according to the survey.) A YouGov survey released last week showed a bipartisan majority of Americans support both term limits and an enforceable ethics code for Supreme Court justices. 

Last fall, the court adopted a formal ethics code for the first time in its history, but it included no way to enforce it. Speaking in Sacramento, California, last week, Justice Elena Kagan said the court “should try to figure out some [enforcement] mechanism,” reported CNN. The justice floated the idea of lower court judges holding the justices accountable.

Beyond the question of whether reforms can be implemented, some scholars think the country needs to consider a more sobering question: Should these reforms be implemented?

“How would you feel if you kind of liked what the court was doing and you saw people you do not politically support trying to mold the court into their image?” asks Professor Grove.

It’s not just the content of the reforms that worries some in the legal community, but the context in which they’re being pushed. The proposed reforms are “rooted in dissatisfaction with decisions of justices, and I worry about that,” says Thomas Griffith, a former judge on the U.S. Court of Appeals for the District of Columbia Circuit.

Indeed, Mr. Biden’s op-ed opens and closes with references to the Supreme Court’s presidential immunity decision. Plus, Judge Griffith – another member of the presidential commission – believes that the court could benefit from some reforms, but not if they’re tainted by politics.

“There’s probably lots of things we can do,” he adds. “But let’s have it come from a desire for good government and process, and not because people are upset by a decision.”

So reforms aren’t likely ... yet?

Certainly not in the next six months, and perhaps not even in the next six years. But it’s worth noting that the Supreme Court has quietly been reforming at the margins.

The court continued to broadcast live audio of oral arguments since the COVID-19 pandemic forced it to begin the practice, for example. And the court adopted the formal ethics code last year after mounting public concern over the justices’ ethical practices – including Justice Sonia Sotomayor using court staff to schedule her book tour, and Justices Clarence Thomas and Samuel Alito not disclosing decades of gifts from wealthy conservative donors.

Adopting the ethics code “was a direct result of public pressure,” says Christine Bird, an associate professor of political science at Oklahoma State University. 

Public support now for more substantial reforms, like term limits, “is not something we would have seen five to 10 years ago,” she adds. That said, she continues, “Smaller changes are more likely than big sweeping changes.”

Calls for Supreme Court reform are not new, or even exclusively Democratic. One could even argue that reform has been a constant, albeit a glacially moving constant. To paraphrase a ruling from the past term, the Supreme Court as an institution is not trapped in amber. 

The Constitution does not prescribe term limits for the federal judiciary, yet lower court judges have been able to take “senior status” for over a century. Now the country is debating whether a similar principle could apply to justices.

Ethics reform is another example. Before the 1970s, there was no formal ethics code for the federal judiciary. An ethics scandal involving Justice Abe Fortas pressured the courts into creating one – yet it excluded the Supreme Court, an omission the country is now reexamining. 

The court has long been thought of – and thought of itself – as different from other institutions in that it’s supposed to exist above politics.

When Mr. Biden says that what’s happening now is “not normal,” he’s saying that the court is no longer behaving differently from other institutions. His proposed reforms are a response to that perceived shift. Some legal scholars say the reforms he’s calling for would only entrench the Supreme Court in the political realm.

“I hate to take issue with the president of the United States ... but I think this is normal,” says Judge Griffith. The court “is doing what it’s supposed do, deciding cases in front of it and using its best efforts to apply the law.”

“Every judge takes an oath to do impartial justice, and that’s certainly an ideal,” he adds. “When a judge is not acting impartially, do you give up on the ideal? No, you double down on the ideal.”