For Biden, who has long resisted calls to reform the Supreme Court, Monday’s announcement marked a major shift in his stance on one of America’s three branches of power. Since taking office, the court has shifted significantly to the right. Roe v. Wade, It would eliminate affirmative action in college admissions, weaken the power of federal agencies by reversing a 40-year-old decision, and repeal Biden’s student loan forgiveness program.
“As a senator, vice president and president, I have overseen more Supreme Court nominations than anyone alive today,” Biden wrote in an op-ed in The Washington Post on Monday morning. “I have great respect for our institution and the separation of powers. What is happening now is not normal and undermines public confidence in the Supreme Court’s decisions, including those that affect individual liberties. We are now at a crisis point.”
The President officially endorses it. Biden said he would advocate for these three reforms during a speech marking the 60th anniversary of the Civil Rights Act at the Johnson Presidential Library in Austin. The Post previously reported that Biden plans to advocate for these three reforms.
But at this stage, these demands are largely wishful thinking, given the low likelihood of implementation. Term limits and ethics would require Congressional approval, and the Republican-controlled House of Representatives is unlikely to support either. And both proposals would need 60 votes to pass the Senate, where Democrats hold just 51 seats. Constitutional amendments would need to clear many more hurdles to pass, including two-thirds support from both houses, or a two-thirds conference of states followed by approval by three-quarters of state legislatures.
Biden’s proposed amendment, which he called “the No Person Above the Law Amendment,” provides that “the Constitution does not grant immunity from Federal criminal prosecution, trial, conviction, or sentence by reason of having served as President.”
“This country was founded on a simple yet profound principle: No one is above the law — not the president of the United States, not a justice of the United States Supreme Court, not anyone,” Biden wrote in an op-ed explaining his decision.
The ideologically-lined Supreme Court immunity decision makes it highly unlikely that Trump will be tried for trying to overturn the 2020 election before voters cast their ballots this year.
Less than an hour after the ruling, Biden called Laurence Tribe, a constitutional law professor at Harvard Law School, to discuss the ruling and the pros and cons of Supreme Court reform. The following week, Biden called Tribe again, and the two discussed a Guardian opinion piece supporting Supreme Court reform. Among the options they discussed were term limits, enforceable ethics rules, and a constitutional amendment to address the presidential immunity clause.
Tlaib acknowledged that she spoke with Biden but declined to comment on the discussion.
Biden’s call for an enforceable ethics code comes after a year of scandal at the Supreme Court, largely centered around Justice Clarence Thomas and a lack of disclosure about gifts, and Justice Samuel Alito, who has also come under fire for flying a politically provocative flag at his home.
Biden wrote that ethics rules should require judges 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.”
Biden said term limits would allow future presidents to appoint justices every two years, making Supreme Court nominations “more predictable and less arbitrary.” He noted that the United States is the only major constitutional democracy that allows for lifetime appointments to Supreme Court justices.
After The Washington Post first reported Biden’s proposal, Republican presidential candidate and former President Donald Trump criticized the president’s plan.
“Democrats are trying to interfere in a presidential election and destroy our justice system by attacking their political opponents, the state of Maine, and the Supreme Court,” he wrote to Truth Social. “We must fight for fair and independent courts and protect our country.”
During the 2020 presidential campaign, Biden rebuffed liberal calls to expand the Supreme Court but promised to create a commission to study possible changes, which he has done. Biden took the pledge after his election, and the committee submitted a 294-page report to the president. Since the committee’s report was approved in December 2021, Biden had not acted on it until Monday.
Biden had planned to support Supreme Court reform even before he reversed course last weekend and announced he would not seek a second term as president. He hinted at the plan during a conference call with the Congressional Progressive Caucus, part of an unsuccessful effort to rally Democrats around his candidacy.
“I need your help on the Supreme Court because I’m about to announce — I don’t want to announce it prematurely — but I’m about to announce a big plan to limit the power of the Supreme Court. … I’ve been working with constitutional scholars for the last three months, and I need help,” Biden said, according to a recording of the call obtained by The Washington Post.
