WASHINGTON – President Joe Biden on Monday proposed major changes to the U.S. Supreme Court: an enforceable code of ethics, term limits for justices and a constitutional amendment that would limit the justices’ recent ruling on presidential immunity.
There is almost no chance the proposal will pass in a closely divided Congress with Election Day approaching, but the ideas could still spark conversations with public confidence in the court reaching a minimum of all time amid ethical revelations about some judges. It also comes in the context of a contentious presidential election and growing Democratic outrage over the conservative-majority court’s recent rulings.
Here’s a look at the ideas, how they might work, and potential obstacles:
Limiting the time judges serve on the nation’s highest court has broad support among Americans, polls show.
A poll of Associated Press-NORC Center for Public Affairs Poll in July 2022 found that 67% of Americans support a proposal to set a specific number of years that judges serve instead of life sentences, including 82% of Democrats and 57% of Republicans.
Biden’s proposal would limit justices to 18-year terms, a system he says would make appointments more predictable, less arbitrary and reduce the chances of a single president shaping the court for generations to come.
There’s one big problem: The Constitution gives all federal judges lifetime tenure unless they resign, retire, or are removed from office.
There are ideas about how to impose term limits without an amendment — but if such a law were passed and challenged in court, judges could end up ruling on it and it’s unclear how that would happen, said Charles Geyh, a law professor at Indiana University and expert in judicial ethics.
The Supreme Court did not have a formal code of ethics until last year, when ministers adopted a in the face of constant criticism about undisclosed trips and gifts from wealthy benefactors to some judges, such as Clarence Thomas.
There is still a lack of a means of enforcement – something Biden says is “common sense”. Members of Congress, for example, generally cannot accept gifts worth more than $50.
Anyone can file complaints against other federal judges, who are subject to censure and reprimand. Justice Elena Kagan expressed support for adding an enforcement mechanism to the Supreme Court’s code of ethics in a public appearance last week.
Still, making the high court’s code of ethics enforceable raises thorny questions about how it might be enforced and by whom.
Lower courts say its disciplinary process is not intended to directly police its code of ethics, maintaining that the code is written too broadly for violations to translate directly into discipline, Geyh said.
This code of ethics is overseen by the Judicial Conference, headed by Chief Justice John Roberts. He “may be reluctant to use whatever power the conference has against his colleagues,” said Stephen Gillers, a legal ethicist at NYU School of Law, in an email.
Biden is also calling for a constitutional amendment that would limit the recent Supreme Court ruling that granted former President Donald Trump — and all other presidents — broad immunity from criminal prosecution.
The amendment “would make clear that there is no immunity for crimes committed by a former president while in office,” Biden wrote in an op-ed in the Washington Post. “We are a nation of laws – not kings or dictators.”
It wouldn’t be the first time — the Constitution has been amended about five times in U.S. history to overturn a Supreme Court ruling, Geyh said.
But constitutional changes present even greater obstacles than new laws. The proposal must gain the support of two-thirds of the House and Senate and then be ratified by three-quarters of state legislatures.
No new amendments have been passed in more than 30 years. Republican House Speaker Mike Johnson called Biden’s proposal a “dangerous move” that would be “dead on arrival in the House.”
A former chairman of the Senate Judiciary Committee, Biden has long resisted calls to reform the Supreme Court.
In 2021, he fulfilled a campaign promise to convening a commission t o study possible changes in the court. He was not tasked with making recommendations and warned that excessive changes could potentially erode democracy.
The latest proposals come years later, and amid growing outrage among Democrats over high court opinions that overturned landmark rulings on abortion rights and federal regulatory powers. There is also a hotly contested presidential election against Trump underway.
Even though Biden’s ideas are unlikely to be approved, they could catch the attention of voters. Vice President Kamala Harris, who Biden supported for president after dropping out of the race, supported the proposal.
However, it is being criticized by conservatives like activist Leonard Leo, who said in a statement: “This is about Democrats destroying a court they don’t agree with.”
