Biden’s Supreme Court proposal faces steep odds

President Biden’s shift on Supreme Court reform adds weight to liberal pushback on the conservative-majority bench, but his proposal is unlikely to go anywhere. 

On Monday, Biden announced a three-pronged push to implement Supreme Court term limits, a binding code of ethics and a constitutional amendment to counteract the justices’ recent presidential immunity decision. 

“My fellow Americans, based on all my experience, I’m certain we need these reforms,” Biden said during a speech at the LBJ Presidential Library. “We need these reforms to restore trust in the court, preserve the system of checks and balances that are vital to our democracy.” 

But there was an acknowledgment from the White House that Biden’s proposals will require legislative action, something that appears deeply unlikely in a divided Congress. 

“This will require some type of legislative action. And I think the great thing about Supreme Court reform is that a significant number of Americans feel very strongly about the issue as well,” Steve Benjamin, director of the Office of Public Engagement, told reporters aboard Air Force One on Monday. 

“The rules that apply to every other federal judge should also apply to the Supreme Court. And I think we’re going to have to count on members of Congress on both sides of the aisle listening to their constituents,” he added. 

With dim prospects for passage, Biden’s effort is widely viewed as a messaging push, particularly given his status as a lame duck after ending his reelection bid.  

Democrats, liberal advocacy groups and some watchdogs have long called for the crackdown as the court shifted to the right and faced ethics controversies. But many of those prominent advocates — like Fix the Court, the American Civil Liberties Union and United for Democracy, a coalition of 140 organizations formed to push back on the court — said the White House did not involve them in drafting the three prongs. 

Instead, a White House official said Biden relied on a 294-page report produced by a bipartisan commission created early in his term to study the question of Supreme Court reform. That December 2021 report did not take a position on various proposals, but it did explore ideas like court expansion, term limits and a code of conduct and how each would be implemented. 

Biden also consulted with Vice President Harris, who previously served as the attorney general of California and as a member of the Senate Judiciary Committee. 

Outside reform advocates are celebrating the president’s shift, nonetheless. 

“To hear the idea that there would actually be some kind of accountability measures in place was just, I think, one of the most important things that we could have heard out of the president’s mouth,” said Common Cause President Virginia Kase Solomón, who attended Biden’s speech. 

Though Biden’s announcement marks a major shift, his proposal still does not go as far as some liberal advocacy groups pushing for court expansion. Backed by progressives like Sen. Ed Markey (D-Mass.), they reacted to Biden’s proposal by casting it as merely a good first step. 

Like Biden, Harris does not support expanding the court, a campaign spokesperson told The Hill. 

But Republicans still view Biden’s proposal as a partisan attempt to tear down the conservative-majority court, which was cemented by former President Trump’s three appointees. 

“It is telling that Democrats want to change the system that has guided our nation since its founding simply because they disagree with some of the Court’s recent decisions,” Speaker Mike Johnson (R-La.) wrote on the social platform X. 

“This dangerous gambit of the Biden-Harris Administration is dead on arrival in the House.” 

Biden snapped back on Monday, saying Johnson’s “thinking is dead on arrival.” 

In the Senate, Biden’s announcement came as welcome news to Senate Judiciary Committee Chair Dick Durbin (D-Ill.), Sen. Sheldon Whitehouse (D-R.I.) and others who have long pushed for a binding ethics code and raised alarm after reports emerged last year of Justice Clarence Thomas and others accepting lavish trips and gifts from billionaires.  

“I thank President Biden for highlighting the Supreme Court’s ethical crisis. Through our ongoing investigation, the Senate Judiciary Committee has verified and reported lavish trips by sitting justices that were paid for by wealthy benefactors, including some previously unknown to the public,” Durbin said in a statement. 

But Senate Republicans have had no appetite for Supreme Court reform, expressing trust in the nation’s nine top jurists to police their own ethics amid the recent controversies. 

“No conservative justice has made any decision in any big case that surprised anyone, so let’s stop pretending this is about undue influence. It’s about Democrats destroying a court they don’t agree with,” Leonard Leo, a judicial activist who has played a central role in the Supreme Court’s rightward shift, said in a statement. 

Biden’s Supreme Court commission in its December 2021 report wrote that a code of conduct for the Supreme Court could either be internally adopted by the justices, or Congress could vote to impose a code of conduct on the court. The report also raised the idea of a disciplinary framework for the court that would either be internally enacted or approved by Congress.  

In November, all nine justices signed a formal code after months of public pressure and closed-door negotiations. But Democrats, criticizing the code’s lack of an enforcement mechanism, have continued demanding congressional intervention. 

Biden’s announcement comes four days after Justice Elena Kagan, one of the court’s liberals who has been among the most vocal of her colleagues in supporting stricter ethics rules, called the critique “fair.” She suggested a panel of lower judges could adjudicate ethics concerns. 

“I feel as though, however hard it is, that we could and should try to figure out some mechanism for doing this,” Kagan said while speaking at a judicial conference in Sacramento, Calif. 

As for term limits, Biden’s commission report does not take a position, but it lays out how they could be adopted either by constitutional amendment or by statute. The report’s authors acknowledged opponents of imposing term limits would cite the “intractability of these implementation questions as reason not to pursue term limits.” 

When asked on Monday how he would get his plan passed, Biden told reporters, “We’re going to figure a way.”