Biden unveils plan for Supreme Court that includes term limits, ethics code

  • Comments
  • Print
Listen to this story

Subscriber Benefit

As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe Now
0:00
0:00
Loading audio file, please wait.
  • 0.25
  • 0.50
  • 0.75
  • 1.00
  • 1.25
  • 1.50
  • 1.75
  • 2.00

President Joe Biden has unveiled a long-awaited proposal for changes at the U.S. Supreme Court, calling on Congress to establish term limits and an enforceable ethics code for the court’s nine justices. He’s also pressing lawmakers to ratify a constitutional amendment limiting presidential immunity.

The White House on Monday detailed the contours of Biden’s court proposal, one that appears to have little chance of being approved by a closely divided Congress with just 99 days to go before Election Day.

Still, Democrats hope it’ll help focus voters as they consider their choices in a tight election. The likely Democratic nominee, Vice President Kamala Harris, who has sought to frame her race against Republican ex-President Donald Trump as “a choice between freedom and chaos,” said the court’s fairness had been called into question following recent decisions.

The White House is looking to tap into the growing outrage among Democrats about the court, which has a 6-3 conservative majority, issuing opinions that overturned landmark decisions on abortion rights and federal regulatory powers that stood for decades.

Liberals also have expressed dismay over revelations about what they say are questionable relationships and decisions by some members of the conservative wing of the court that suggest their impartiality is compromised.

“I have great respect for our institutions and separation of powers,” Biden argues in a Washington Post op-ed published Monday. “What is happening now is not normal, and it undermines the public’s confidence in the court’s decisions, including those impacting personal freedoms. We now stand in a breach.”

Harris later issued a statement saying the American people must have confidence in a Supreme Court blighted by ethics scandals and decisions overturning long-standing precedent. She said the reforms being proposed “will help to restore confidence in the Court, strengthen our democracy, and ensure no one is above the law.”

The president planned to speak about his proposal later Monday during an address at the LBJ Presidential Library in Austin, Texas, to mark the 60th anniversary of the Civil Rights Act.

Biden is calling for doing away with lifetime appointments to the court. He says Congress should pass legislation to establish a system in which the sitting president would appoint a justice every two years to spend 18 years in service on the court. He argues term limits would help ensure that court membership changes with some regularity and adds a measure of predictability to the nomination process.

He also wants Congress to pass legislation establishing a court code of ethics that would require justices to disclose gifts, refrain from public political activity and recuse themselves from cases in which they or their spouses have financial or other conflicts of interest.

Biden also is calling on Congress to pass a constitutional amendment reversing the Supreme Court’s recent landmark immunity ruling that determined former presidents have broad immunity from prosecution.

That decision extended the delay in the Washington criminal case against Trump on charges he plotted to overturn his 2020 presidential election loss and all but ended prospects the former president could be tried before the November election.

Polls indicate Americans support limiting how long justices serve on the nation’s highest court. Last summer, a poll from The Associated Press-NORC Center for Public Affairs Research found 67% of Americans, including 82% of Democrats and 57% of Republicans, support a proposal to set a specific number of years that justices serve instead of life terms.

The first three justices who would potentially be affected by term limits are on the right. Justice Clarence Thomas has been on the court for nearly 33 years. Chief Justice John Roberts has served for 19 years, and Justice Samuel Alito has served for 18.

The latest justices to leave the court were on the left. Justice Stephen Breyer stepped down in 2022 after 27 years on the court and Ruth Bader Ginsburg died in 2020, also after 27 years on the court.

Supreme Court justices served an average of about 17 years from the founding until 1970, said Gabe Roth, executive director of the group Fix the Court. Since 1970, the average has been about 28 years. Both conservative and liberal politicians alike have espoused term limits.

“If justices have this much power, then they should be individuals who reflect America as it currently is, not the America of 30 or 40 years ago, the dead hand of the president who appointed them still influencing policy,” Roth said.

An enforcement mechanism for the high court’s code of ethics, meanwhile, could bring the Supreme Court justices more in line with other federal judges, who are subject to a disciplinary system in which anyone can file a complaint and have it reviewed. An investigation can result in censure and reprimand. Last week, Justice Elena Kagan called publicly for creating a way to enforce the new ethics code, becoming the first justice to do so.

Still, when it comes to the Supreme Court, creating an ethics code enforcement mechanism isn’t as easy as it sounds.

The attorney general has always had the power to enforce violations of the financial and gift disclosure rules but has never apparently used that power against federal judges, said Stephen Gillers, a legal ethics expert at NYU School of Law.

The body that oversees lower court judges, meanwhile, is headed up by Roberts, “who might be reluctant to use whatever power the conference has against his colleagues,” Gillers wrote in an email.

The last time Congress ratified an amendment to the Constitution was 32 years ago. The 27th Amendment, ratified in 1992, states that Congress can pass a bill changing the pay for members of the House and the Senate, but such a change can’t take effect until after the next November elections are held for the House.

Trump has decried court reform as a desperate attempt by Democrats to “Play the Ref.”

“The Democrats are attempting to interfere in the Presidential Election, and destroy our Justice System, by attacking their Political Opponent, ME, and our Honorable Supreme Court. We have to fight for our Fair and Independent Courts, and protect our Country,” Trump posted on his Truth Social site this month.

There have been increasing questions surrounding the ethics of the court after revelations about some of the justices, including that Thomas accepted luxury trips from a GOP megadonor.

Justice Sonia Sotomayor, who was appointed during the Obama administration, has faced scrutiny after it surfaced her staff often prodded public institutions that hosted her to buy copies of her memoir or children’s books.

Alito rejected calls to step aside from Supreme Court cases involving Trump and Jan. 6, 2021, insurrection defendants despite a flap over provocative flags displayed at his homes that some believe suggested sympathy to people facing charges over storming the U.S. Capitol to keep Trump in power. Alito says the flags were displayed by his wife.

Democrats say the Biden effort will help put a bright spotlight on recent high court decisions, including the 2022 ruling stripping away women’s constitutional protections for abortion, by the conservative-majority court that includes three justices appointed by Trump.

The announcement marks a remarkable evolution for Biden, who as a candidate had been wary of calls to reform the high court. But over the course of his presidency, he has become increasingly vocal about his belief that the court has abandoned mainstream constitutional interpretation.

Last week, he announced during an Oval Office speech that he would pursue Supreme Court reform during his final months in office, calling it “critical to our democracy.”

Please enable JavaScript to view this content.

Editor's note: You can comment on IBJ stories by signing in to your IBJ account. If you have not registered, please sign up for a free account now. Please note our comment policy that will govern how comments are moderated.

17 thoughts on “Biden unveils plan for Supreme Court that includes term limits, ethics code

    1. Meh, I go back and forth on term limits for Congress. Getting to vote every 2 and 6 years is good, and if communities would like to keep sending back representatives who they feel work for them, I think that’s fine. I think that’s an important distinction between Congress and SCOTUS. We need districts to be competitive, however. The number of “safe” districts should be infinitesimally small. No more partisan gerrymandering and overturn Citizens United; lawmakers should always feel like they are under pressure to deliver for their constituents or lose their seats.

    2. AR is spot on – apples and oranges SCOTUS vs Congress terms limits: I think term limits in Congress probably gives more influence to lobbyists, as they will be the ones with staying power / institutional knowledge.

      Need for competitive districts is much more important. Moving toward ranked choice voting/jungle primary would probably be the most bang for the effort – could be passed at the state legislature level.

  1. Democrats are two elections late in making an election about the Supreme Court. They got played by Republicans led by Mitch McConnell, we shall all feel the effects of the Federalist Society judges they packed into the judicial system for decades as they try to roll back 100 years of settled law.

  2. A strong judicial ethics code exist snow–for all federal judges except SCOTUS. Guess who oversees it? SCOTUS.

    If they’d just agree to live by the existing judicial ethics code, none of Clarence’s nonsense would occur.

    You’d think a long-serving SCOTUS justice, who barely survived a scandalous confirmation procedure, would have more sense than to: accept lavish gifts without reporting them.

  3. Interesting that as we had a liberal court the last 50-60 years, there was hardly, or never, a call for term limits. Only after the court turned conservative that the cries began.
    Also, I agree with Clark B, we do need term limits on all of Congress, that’s where are biggest problems lie.
    Also, if there is really an ethics concern, we need to investigate Congress members a bit more often.

    1. Yeah, that flaming liberal Earl Warren … he was the worst. Why did that … Republican Eisenhower appoint him anyway? And Burger, appointed by that liberal Nixon?

  4. Let’s be clear – Congress can’t “pass a constitutional amendment” or “ratif[y] a constitutional amendment”. Congress can PROPOSE a constitutional amendment, which will only become an actual amendment if ratified by 3/4 of the states. This process was made intentionally difficult by our founding fathers, which is why it has only happened 27 times in the history of our country.

    The writer of this article apparently does not understand the process. I would expect more from the Associated Press (and the writer’s editors).

  5. a tweak to the proposal: Make the Court 13 seats, and have one Justice from each Circuit and the Federal Circuit. Not more than 3 terms of 6 years, then can take Senior status to be available for assignment where ever needed in the Federal judicial system, or retire completely on a lesser retirement.

  6. Only a crooked, lifetime parasitic, senile lame duck ‘President’ and his lackeys could come up with such a last minute desperate move on a Constitutional fixture. Frankly….there should be mandatory end of service, retirement by age of 70 for ALL federal employees, elected or appointed. That goes for every department from janitor to FBI director and yes, Congress and the Presidency. Elected officials could not run for re-election once they passed their 70th birthday. That, in effect, is ‘term limits’.

    1. That seems very strange you denigrated the person calling for an idea that you then said didn’t go far enough… lol

    2. which, as to Judges and Justices, the President, Vice President, and members of Congress, would require a Constitutional Amendment, as such an age limit is not part of the Constitutionally listed qualifications for office.
      But age restrictions and term limitations miss the point. It’s not how old you are, but how competent. The closer I get to 70, the more I’m pretty sure I’d do a better job as a Representative or Senator than many of the younger bozos now in office. It’s not the age, its the wisdom and ability to understand the total breadth of the issues.

  7. Alito claims the Congress lack the constitutional authority to impose ethical standards or enforcement of standards. Does he not understand the meaning of “coequal branches of government” (executive, legislative, and judicial) and “checks-and-balances”? Or the fact that Congress controls the SCOTUS purse strings. Alito is, therefore, not a part of the solution but is the problem.

Get the best of Indiana business news. ONLY $1/week Subscribe Now

Get the best of Indiana business news. ONLY $1/week Subscribe Now

Get the best of Indiana business news. ONLY $1/week Subscribe Now

Get the best of Indiana business news. ONLY $1/week Subscribe Now

Get the best of Indiana business news.

Limited-time introductory offer for new subscribers

ONLY $1/week

Cancel anytime

Subscribe Now

Already a paid subscriber? Log In

Get the best of Indiana business news.

Limited-time introductory offer for new subscribers

ONLY $1/week

Cancel anytime

Subscribe Now

Already a paid subscriber? Log In

Get the best of Indiana business news.

Limited-time introductory offer for new subscribers

ONLY $1/week

Cancel anytime

Subscribe Now

Already a paid subscriber? Log In

Get the best of Indiana business news.

Limited-time introductory offer for new subscribers

ONLY $1/week

Cancel anytime

Subscribe Now

Already a paid subscriber? Log In