Possible Biden effort to reform Supreme Court, add term limits draws concern from the right

U.S. Supreme Court, Washington, D.C. / Credit: Bob Korn/Shutterstock

Washington, D.C. Newsroom, Jul 17, 2024 / 17:05 pm (CNA).

President Joe Biden intends to announce plans to reform the United States Supreme Court by adding term limits and an ethics code — a plan that has drawn concern from conservative legal scholars and support among progressives.

The president disclosed his plans for major reform during a Zoom call with the Congressional Progressive Caucus, according to sources who spoke to several media outlets, including the Associated Press and The Washington Post.

“I’m about to come out with a major initiative on limiting the court,” Biden said, according to a transcript of the call reviewed by the Washington Post. “… I’ve been working with constitutional scholars for the last three months, and I need some help.”

The impending announcement comes as Biden continues to criticize some of the Supreme Court’s decisions, including the ruling that overturned Roe v. Wade and the ruling that grants presidents immunity from criminal prosecutions in certain situations.

Biden has not announced specific details of what the reforms would look like or how they would be implemented. Major reforms such as term limits or an enforceable ethics code would require either legislation passed through Congress or possibly constitutional amendments, which would be a more difficult and lengthy process.

Thomas Jipping, a senior legal scholar at the conservative Heritage Foundation, told CNA he believes that both term limits and an enforceable ethics code would require amendments and could not be enforced simply through legislation.

“The Supreme Court was created by the Constitution, not by Congress,” Jipping said. “… Because Congress did not create the Supreme Court, it has very little authority over regulating how the Supreme Court operates.”

Jipping noted that the Constitution sets terms for members of Congress and the president but that the only limit it puts on Supreme Court justices is that they “shall hold their offices during good behavior,” which permits impeachments if justices behave improperly. He said the lack of terms for justices is “a specific part of the constitutional design.”

“It was intentional on the founders’ part,” Jipping added.

Jipping expressed concerns about congressional encroachment jeopardizing the separation of powers among the three branches of government, which he called “the single most important structural limitation on the power of government.” He argued that progressives “want a Supreme Court that will do what it’s told” and that the campaign to criticize the court is “aimed only at the conservative members of the Supreme Court and [has an] objective of demonizing conservative justices and their decisions.” 

John Bursch, who serves as vice president of appellate advocacy for Alliance Defending Freedom — a legal group that fights for religious freedom and other issues — accused the president of politicizing the court.

“The Biden administration’s continued attempts to undermine and discredit the U.S. Supreme Court will only further divide the nation and undermine public confidence in the rule of law,” Bursch said in a statement to CNA. “The administration needs to stop politicizing one of the world’s most respected courts, which is charged with protecting our cherished constitutional freedoms.”

Alternatively, progressive organizations such as the Brennan Center for Justice are voicing support for Supreme Court reforms such as term limits. 

“Term limits would be a transformational reform,” Alicia Bannon, the director of the Brennan Center’s judiciary program, said in a post on X.

“Today’s system puts justices in an elite and unaccountable bubble for decades — and lets an individual shape the direction of the law for generations,” Bannon added. “ And ethics reform is also long overdue.”

Reforming the Supreme Court became a top priority for some Democratic lawmakers after former President Donald Trump appointed Justice Amy Coney Barrett to replace former Justice Ruth Bader Ginsburg upon her death. The appointment shifted the makeup on the court, which now has six justices appointed by Republican presidents and only three justices appointed by Democratic presidents.

Some rulings following Barrett’s appointment have gone in the favor of conservatives, such as the 6-3 ruling in June 2022 that overturned Roe v. Wade and allowed states to restrict abortion, as well as the 6-3 decision in June 2023 to protect the religious freedom of a Christian web designer who refused to design websites that promoted homosexual civil marriages.

However, some rulings have not gone in the conservatives’ favor, such as the unanimous decision in June of this year that rejected a doctor-led challenge to the Food and Drug Administration’s approval of the abortion pill mifepristone. In another case, the Supreme Court ruled 5-4 in August 2023 — with Barrett and Republican-appointed Chief Justice John Roberts joining the three Democratic appointees — to allow the federal government to continue enforcing restrictions on firearm parts kits.

The Supreme Court could also hear other politically divisive issues in the upcoming terms, such as the various lawsuits that challenge Department of Education regulations that redefine Title IX’s prohibition on sex discrimination to include a ban on discriminating based on a person’s self-asserted gender identity.