Biden Is Opening the Door to Supreme Court Reform

To be clear, Joe Biden’s new set of proposals for reforming the U.S. Supreme Court are not going to be enacted any time soon.

One of the proposals — to reverse SCOTUS’s recent recognition of presidential immunity from criminal charges — would require a constitutional amendment, an extremely laborious process that hasn’t succeeded in over 30 years. The more essential reform proposes the abolition of lifetime tenure for SCOTUS justices in favor of a regime of 18-year terms with presidents appointing a new justice every two years. This idea is highly controversial and would be doomed in Congress unless the Senate filibuster is first eliminated. The whole package was rather transparently intended to revivify Biden’s recently lagging presidential campaign with some progressive energy, which is moot now that Biden has ended his candidacy and endorsed Kamala Harris, who has plenty of energy without policy calisthenics.

But is Biden’s initiative destined to become a footnote in the 2024 presidential contest, or worse yet, a right-wing talking point for those frantically trying to make the case that Democrats pose a greater threat to our legal system than the infamous scofflaw Donald Trump? Maybe not.

Biden’s tardy embrace of major Supreme Court reforms is an authentic reflection of how toxic SCOTUS has become since its transformation into a conservative activist institution — long underway but consummated by Trump’s three Court appointments (one stolen from Barack Obama by Mitch McConnell when he refused to allow Merrick Garland’s confirmation hearings in 2016). That a hard-core institutionalist like Biden, for many years a member of the Senate Judiciary Committee, the great defender of SCOTUS prerogatives, is proposing a major restructuring of the Court shows how significantly its reputation has eroded during the tenure of Chief Justice John Roberts. In turn, the evolution of Roberts from an eager and intensely politicized judicial activist into one of the few curbs on a radicalized conservative bloc led by Justices Samuel Alito and Clarence Thomas shows we’re in an era of polarized perception of the Court unprecedented since an earlier conservative-dominated SCOTUS tried to kill the New Deal.

Perhaps the least controversial Biden proposal is to impose a code of ethics on the Court, essentially ending a power of self-regulation that it refuses to use even in the face of provocations from the increasingly arrogant and defiant Alito and Thomas. More generally, the Court has lost much of its aura of super-respectability. As FiveThirtyEight observed in October of 2023, public assessments of SCOTUS have taken a nosedive, particularly since the Court reversed Roe v. Wade:

The court’s net approval rating at the beginning of September was the lowest since our tracker began in December 2020. Other metrics besides approval, like favorability and confidence, have also registered record lows. In a Pew Research survey from July, the court’s favorability was the lowest since they began asking the question back in 1987. And 62 percent of adults in an April Marist/NPR/PBS NewsHour poll said that they had not very much or no confidence at all in the Supreme Court.

As I’m sure the White House realized before endorsing the 18-year-term idea that voters pretty much support term limits for everybody everywhere, and a July 2023 AP/NORC survey showed 67 percent of Americans favor limiting terms for SCOTUS justices as well. Support among Democrats spiked to 82 percent, indicating that Court reforms considered “radical” not long ago are becoming mainstream Democratic ideas. This partly explains Kamala Harris’s decision to back Biden’s proposals, and also shows Republicans may not be able to make Court reform a “wedge issue” dividing Democrats, as they have been able to do since FDR’s “court-packing” scheme.

The big-picture perspective is that the reforms Biden is proposing are no longer remotely as controversial as they once were, proving that conservatives could pay a big price for the radical policy gains they have achieved by their recent domination of the Court. A congressionally imposed code of ethics seems practicable if Democrats can regain trifecta control of the White House and Congress and the proposal survives court challenges. More systemic reforms like term limits or constitutional amendments to reverse deeply unpopular decisions may not succeed in the short term but could produce a voluntary tempering of SCOTUS radicalism. It’s entirely possible that the unpopularity of the current Court could inhibit Republicans from identifying themselves with it in their eagerness to label Court reforms as radical. After all, politicians who loudly defend SCOTUS’s lordly independence are also defending its irresponsible decisions to abolish abortion rights and immunize Donald Trump.