President Joe Biden unveiled several proposals to reshape the Supreme Court on Monday, but his propositions are unlikely to ever be enacted and are meant to undermine the court, legal experts told the Daily Caller News Foundation.
Toward the end of his presidency, Biden is pushing to require term limits for justices, create a binding ethics code for the jurists and to enact a “No One Is Above the Law Amendment” to undo the Supreme Court’s recent decision on the extent of former President Donald Trump’s immunity for official acts conducted while in office. With the proposals practically being dead on arrival and having little chance of navigating the amendment process, legal experts say Biden’s move ultimately boils down to “political theater” and revenge against the court for issuing rulings that Democrats didn’t like.
“This is not really about ethics. This is not really about anything other than, ‘We don’t like the decision that the court came to based on its reading of the Constitution and the law.’ So it’s political theater to put it out there,” Carrie Severino, the president of Judicial Crisis Network, told the DCNF. “I think it’s also pretty transparent what they’re really getting at … Because this is the interest of the deepest pockets on the dark money left, Biden himself came around, and you can see that this was his last-ditch effort to try to save his own campaign. It was too little too late, obviously.”
In recent years, the court has ruled to overturn Roe v. Wade, strike down affirmative action in college admissions, weaken the administrative state and more. These rulings, and another from early July that determined Trump has immunity for certain official acts he conducted while in office, have prompted Democrats to malign the court as a deeply biased, right-wing institution.
However, a breakdown of the court’s decisions from its recently-concluded term shows that of the 22 cases decided by a 6-3 split, only half fell along ideological lines.
One of Biden’s proposed changes would reverse the top court’s July 1 ruling on the issue of presidential immunity, which found presidents are immune from prosecution for official acts undertaken in office, according to the White House. The court acknowledged in its opinion that Trump has claimed broader immunity than the decision recognized.
Nevertheless, many Democrats suggested that the Supreme Court had given presidents permission to get away with nearly anything by claiming presidential immunity.
However, amending the Constitution is a difficult, lengthy process that requires broad bipartisan consensus across the country, which makes the amendment unlikely to ever get close to becoming law, according to Josh Blackman, a professor of law at the South Texas College of Law Houston.
“A constitutional amendment requires two-thirds of both Houses of Congress, and three-fourths of the states,” Blackman told the DCNF. “This proposal won’t even make it out of the House.”
Biden’s plan would also have the president nominate a new justice for the court once every two years, with each justice serving out an 18-year term on the Supreme Court. Such a structure would “make timing for Court nominations more predictable and less arbitrary” and “reduce the chance that any single Presidency imposes undue influence for generations to come,” according to the president’s plan.
“As for term limits for Justices, there are pluses and minuses, although it strikes me primarily as a solution in search of a problem,” John Malcolm, vice president of the Heritage Foundation’s Institute for Constitutional Government, told the DCNF. “Moreover, it will require a constitutional amendment, making it less likely to happen. And if anyone thinks that having more frequent Supreme Court confirmation hearings will de-politicize the process, I have some beachfront property in the Mojave Desert to sell you.”
The now-lame duck president is also floating an “ethics code” for the court, which experts told the DCNF is really meant to serve as a tool to go after justices who may be inclined to strike down or otherwise neuter left-wing policies from the bench. In an opinion piece for The Washington Post addressing his proposals, Biden wrote that the Supreme Court is “mired in a crisis of ethics” that “have caused the public to question the court’s fairness and independence.”
Democrats have made a spectacle of the Supreme Court’s supposed ethical crisis, particularly following nonprofit media outlet ProPublica’s series of stories in 2023 on Justice Clarence Thomas’ relationship with real estate mogul Harlan Crow. Those stories laid the foundation for a sustained effort by Democrats to push Supreme Court ethics reforms and suggest that Thomas is not impartial.
While the outlet won a Pulitzer Prize for its work, the DCNF demonstrated in June 2023 that ProPublica’s top donors also fund a bevy of activist groups that were attacking Thomas over ethics concerns.
More recently, a string of news reports emerged earlier in 2024 pertaining to Justice Samuel Alito, who is considered one of the most originalist members of the current court along with Thomas. Specifically, those stories focused on the flags that would fly outside of Alito’s homes, with his critics suggesting that the upside-down American flag and the Revolutionary-era “Appeal to Heaven” flag flown outside his properties in the past indicate that he cannot be trusted to be impartial on cases related to Jan. 6 and other similar topics.
Democratic New York Rep. Alexandria Ocasio-Cortez introduced articles of impeachment for both Thomas and Alito earlier in July, citing supposed ethics violations and slamming the “court’s demonstrated inability to preserve its own legitimate conduct.”
“The effort to impose an enforceable judicial code of ethics on Supreme Court Justices is nothing more than an attempt to manipulate the Court to achieve political ends,” Malcolm told the DCNF. “In addition to the fact that the Constitution, not Congress, created the Supreme Court and, therefore, Congress’ authority over the Supreme Court is less than over the courts it creates, neither Biden nor anyone else on the Left called for such ‘reforms’ when liberal justices such as Ruth Bader Ginsburg or Stephen Breyer took international trips paid for by billionaires who actually had cases pending before the Court.”
“Any enforcement process would undoubtedly result in a stream of baseless ethical charges designed to intimidate the Republican appointees on the Supreme Court, as well as the lower courts,” Malcolm added.
Blackman told the DCNF that such an ethics code “would be used for partisan ends” and that “people will file frivolous complaints to force conservative judges off of cases.”
“Ethics reform sounds good but that’s a cynical solution in search of a problem and the justices earlier this year unanimously promulgated a new ethics code anyway. And the Court’s presidential-immunity decision wasn’t so broad or groundbreaking to justify either Trump supporters’ crowing or his opponents’ wailing — and certainly doesn’t merit a constitutional amendment to change,” Ilya Shapiro, a senior fellow and the director of constitutional studies at the Manhattan Institute, said in a statement addressing Biden’s proposals. “In short, this is a case where a weakened president has been pushed by left-wing activists to propose radical changes to an institution that still enjoys more public confidence than any other at the federal level save the military.”
The White House did not respond immediately to a request for comment.
(Featured image credit: Wikimedia Commons/Paul Sableman)
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