President Biden endorsed sweeping changes to the Supreme Court on Monday, calling for 18-year term limits for the justices and a binding, enforceable ethics code for the high court.
He is also pushing for a constitutional amendment that would prohibit blanket immunity for presidents, a rebuke of the Supreme Court after it ruled this month that former president Donald Trump is immune from prosecution for official acts.
For Biden, who has long resisted calls to reform the Supreme Court, the announcement Monday marked a major shift in his posture toward one of America’s three branches of government. Since assuming the presidency, the Supreme Court has veered sharply to the right — overturning Roe v. Wade, ending affirmative action in college admissions, weakening federal agencies’ power by overturning a 40-year decision and striking down Biden’s student-loan forgiveness program.
“I have overseen more Supreme Court nominations as senator, vice president and president than anyone living today,” Biden wrote in an op-ed in The Washington Post published Monday morning. “I have great respect for our institutions and separation of powers. 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.”
The president will officially announce his support for the changes during a speech commemorating the 60th anniversary of the Civil Rights Act at the LBJ Presidential Library in Austin The Post previously reported that Biden was set to call for these three changes.
The calls, however, are largely aspirational at this stage given the long odds they face in implementation. Term limits and an ethics code are subject to congressional approval, and the Republican-controlled House is unlikely to support either. Both proposals also require 60 votes to pass the Senate, and Democrats only hold 51 seats in the upper chamber. Passing a constitutional amendment requires clearing even more hurdles, including two-thirds support of both chambers, or via a convention of two-thirds of the states, and then approval by three-fourths of state legislatures.
Biden’s proposed amendment, which Biden is calling the “No One Is Above the Law Amendment,” states the “Constitution does not confer any immunity from federal criminal indictment, trial, conviction, or sentencing by virtue of previously serving as president.”
In his op-ed explaining his decision, Biden wrote, “This nation was founded on a simple yet profound principle: No one is above the law. Not the president of the United States. Not a justice on the Supreme Court of the United States. No one.”
The Supreme Court immunity decision, which came along ideological lines, made it extremely unlikely that Trump would go to trial on charges of trying to subvert the 2020 election before voters cast ballots in this year’s presidential contest.
Less than an hour after that decision, Biden called Laurence Tribe, a constitutional law professor at Harvard Law School, to discuss the ruling and the arguments for and against remaking the court. The next week, Biden called Tribe again, and the two discussed a Guardian opinion piece he wrote endorsing reforms to the Supreme Court. Among the options they discussed: term limits, an enforceable ethics code and the constitutional amendment to address presidential immunity.
Tribe confirmed that he spoke with Biden but declined to comment on their discussion.
Biden’s call for an enforceable ethics code follows a year of scandals at the Supreme Court, largely centered on Justice Clarence Thomas and his lack of disclosures over gifts. Justice Samuel Alito has also come under criticism for flying politically provocative flags at his homes.
Biden wrote that the ethics codes should 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.”
The term limits, Biden said, would allow future presidents to appoint a justice every two years and make high court nominations “more predictable and less arbitrary.” He noted that the United States is the only major constitutional democracy that gives lifetime appointments to its high court justices.
After The Post first reported on Biden’s proposals, former president Donald Trump, the Republican nominee for president, criticized the president’s plan.
“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,” he wrote on Truth Social. “We have to fight for our Fair and Independent Courts, and protect our Country.”
During the 2020 presidential race, Biden rebuffed calls from liberals who advocated expanding the court but he promised he would create a commission to study potential changes. He followed through on that vow after being elected, and the commission issued a 294-page report to the president. Before Monday, Biden had not acted on the commission’s report since it was approved in December 2021.
Biden had been planning to endorse the changes to the high court, even before he last weekend announced he was reversing course and not seeking a second term as president. Biden hinted about his plans during a call with the Congressional Progressive Caucus, a call that was part of his unsuccessful effort to keep Democrats united behind his candidacy.
“I’m going to need your help on the Supreme Court, because I’m about to come out — I don’t want to prematurely announce it — but I’m about to come out with a major initiative on limiting the court. … I’ve been working with constitutional scholars for the last three months, and I need some help,” Biden said, according to a transcript of the call obtained by The Post.
