Biden unveils plan to term limit Supreme Court justices, citing recent ‘extreme’ decisions

U.S. President Joe Biden speaks during a meeting with Israeli Prime Minister Benjamin Netanyahu in the Oval Office at the White House on July 25, 2024, in Washington, D.C. / Credit: Andrew Harnik/Getty Images

Washington, D.C. Newsroom, Jul 29, 2024 / 14:57 pm (CNA).

President Joe Biden on Monday unveiled a proposal to reform the United States Supreme Court by adding term limits and an ethics code, saying he was motivated in part by the overturning of Roe v. Wade and other recent rulings.

In a July 29 op-ed for the Washington Post attributed to Biden, the president said “term limits would help ensure that the court’s membership changes with some regularity.” The plan would give justices one 18-year term. The president would appoint one justice every two years, which would ensure that the Supreme Court continues to have nine justices.

“The United States is the only major constitutional democracy that gives lifetime seats to its high court,” Biden continued. “Term limits would help ensure that the court’s membership changes with some regularity. That would make timing for court nominations more predictable and less arbitrary. It would reduce the chance that any single presidency radically alters the makeup of the court for generations to come.”

One motivation for these proposals cited by the president was the “dangerous and extreme decisions that overturn settled legal precedent  — including Roe v. Wade.” In the Dobbs v. Jackson Women’s Health Organization decision in 2022, the Supreme Court overturned Roe in a 6-3 ruling. Both states and the federal government can now restrict abortion, according to the new legal standard.

In the op-ed, the president also called for an “enforceable ethics code,” which would require Supreme Court justices to disclose gifts, refrain from political activity, and recuse themselves from cases if the justice or the justice’s spouse has a conflict of interest.

The president alleged in his op-ed that “scandals involving several justices have caused the public to question the court’s fairness and independence.” He added that undisclosed gifts and conflicts of interest “raise legitimate questions about the court’s impartiality.”

“Every other federal judge is bound by an enforceable code of conduct, and there is no reason for the Supreme Court to be exempt,” Biden said.

Numerous Democratic lawmakers started calling for Supreme Court reforms after former President Donald Trump nominated Justice Amy Coney Barrett to replace Justice Ruth Bader Ginsburg upon the latter’s death. This altered the makeup of the court, which now has six justices appointed by Republicans and only three appointed by Democrats. 

Biden did not indicate how the code would be enforced in his op-ed and did not say whether he intended to enact these changes legislatively or through constitutional amendments.

John Malcolm, vice president of the Institute for Constitutional Government at the conservative Heritage Foundation, told CNA that he believes Biden would need constitutional amendments to enact either of these reforms but acknowledged that some respected constitutional scholars believe they could be enacted legislatively.

Malcolm, who testified to the Presidential Commission on the Supreme Court of the United States about such reforms, told CNA that “anything that is designed to curb [the Supreme Court’s] authority impinges on the separation of powers.”

Congress has established codes of conduct for lower courts, but Malcolm noted that “all other lower courts are created by Congress, so Congress has the authority to impose all kinds of restrictions.” Alternatively, he said the powers granted to the Supreme Court are established in the Constitution and that Congress has no more authority to enact a code of conduct on the Supreme Court “than the Supreme Court has to impose a code of conduct on Congress.”

However, even if the president tried to enact the reforms legislatively, Malcolm said there is no chance it could pass because it’s “such a patently political move that I can’t imagine any Republican supporting it.” He also noted that Biden did not propose these reforms as a senator, vice president, or even at the beginning of his presidency but only now that there is strong support from his Democratic base.

“Never at any time has he called for any Supreme Court reforms,” Malcom said. “Now all of a sudden, when there [is] … now 99 days until an election … now is when he calls for reforms. This is a blatant attempt to try to turn the Supreme Court into an election issue.” 

In the Washington Post op-ed, the president also called for a constitutional amendment that would declare that former presidents do not have any immunity for crimes committed while in office. He criticized a recent Supreme Court ruling that found that presidents have some immunity from criminal prosecutions for official acts taken as commander in chief.

“I share our founders’ belief that the president’s power is limited, not absolute,” Biden said. “We are a nation of laws — not of kings or dictators.”

Republicans hold a narrow majority in the House of Representatives. Democrats hold a narrow majority in the Senate but not a large enough majority to overcome the 60-vote threshold needed to end debate on most bills.