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term limits
Harris Backs Biden Call for Supreme Court Overhaul, Immunity Reversal
"These popular reforms will help to restore confidence in the court, strengthen our democracy, and ensure no one is above the law," said Vice President Kamala Harris, the presumptive Democratic nominee.
Jul 29, 2024
U.S. President Joe Biden on Monday detailed his plan to reform the U.S. Supreme Court and address one of its most controversial recent decisions in an op-ed published by The Washington Post.
Vice President Kamala Harris, the presumptive Democratic presidential nominee, quickly endorsed his plan, which calls for term limits for Supreme Court justices, an enforceable code of ethics, and a constitutional amendment reversing the court's decision to grant presidents broad immunity for official acts.
"These popular reforms will help to restore confidence in the court, strengthen our democracy, and ensure no one is above the law," Harris said in a statement.
"Americans deserve a Supreme Court they can trust. It's time for Congress to follow the White House's lead and take action to rein in this out-of-touch court."
After long resisting calls to push court reform, Biden told progressive lawmakers he would propose a plan earlier this month. His shift came weeks after a series of court rulings that granted current and former U.S. presidents broad immunity; overturned the Chevron doctrine empowering federal agencies to rely on their expertise in crafting environmental, public health, labor, and other regulations; and supported the criminalization of homelessness.
The majority-conservative Supreme Court—three of whose members were appointed by former U.S. President Donald Trump—has also in recent years reversedRoe v. Wade, ended affirmative action, and struck down Biden's student loan forgiveness program. It has done all this even as Justices Clarence Thomas and Samuel Alito have been at the center of a series of ethics scandals involving undisclosed gifts from right-wing billionaires and a refusal to recuse themselves from Trump's immunity case despite signals that they or their loved ones supported the January 6, 2021 insurrection to overturn the 2020 election results.
"What is happening now is not normal, and it undermines the public's confidence in the court's decisions, including those impacting personal freedoms," Biden wrote on Monday. "We now stand in a breach."
Biden first called for an amendment to the Constitution called the "No One Is Above the Law" amendment, which would address the court's decision on presidential immunity by clarifying that no president is broadly immune from criminal prosecution, including for official acts.
"We are a nation of laws—not of kings or dictators," Biden wrote.
Next, Biden backed a system of term limits for the court whereby a president would appoint one justice every two years to serve a total of 18 years.
"The United States is the only major constitutional democracy that gives lifetime seats to its high court," Biden noted. "Term limits would help ensure that the court's membership changes with some regularity. That would make timing for court nominations more predictable and less arbitrary. It would reduce the chance that any single presidency radically alters the makeup of the court for generations to come."
Finally, the president called for a binding ethics code, as every other federal judge is subject to.
"This is common sense," Biden wrote. "The court's current voluntary ethics code is weak and self-enforced. Justices should be required 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 stopped short of endorsing court expansion, a move backed by many court reform advocates. It is also unlikely that any of Biden's proposals would currently pass the Republican-controlled House or win over the 60 votes needed in the Senate.
"President Biden's plan renews the system of checks and balances and also establishes binding ethics reforms for a court that has been embroiled in scandal in recent years."
Still, his proposal was welcomed by accountability and good governance groups.
"This is a remarkable and historical step forward on the path to reforming SCOTUS," Wendy Weiser, vice president for democracy at the Brennan Center for Justice, said on social media. "No one should have public power for so long; no one should be the judge in their own case; and no one should be above the law."
Craig Holman, Ph.D., government affairs lobbyist for Public Citizen, said in a statement: "The White House's endorsement of these critical court reforms comes at a time of increasing questions about the lack of transparency and accountability at the court. The White House's new calls for court reform will vastly boost the prospects of moving this reform legislation forward."
Public Citizen co-president Lisa Gilbert said that the group "enthusiastically supports this effort by the Biden-Harris administration and lawmakers to impose term limits and a binding code of ethics on the Supreme Court, and we applaud the support for an amendment to ensure that no president is above the law."
Stand Up America noted that court reform is widely popular with U.S. voters: A vast majority want Congress to pass reform, including 18-year term limits, and 78% want it to impose a code of ethics.
"Americans' confidence in the Supreme Court is at historic lows, which is no surprise given the Roberts Court's blatant disregard for ethical standards, long-standing precedent, and Americans' fundamental freedoms," Stand Up America's executive director, Christina Harvey, said. "We applaud President Biden and Vice President Harris for supporting urgently needed reforms to restore trust in our nation's highest court."
Stand Up America's founder and president Sean Eldridge said on social media that the 18-year term-limit proposal in particular was a "huge step forward for meaningful court reform."
Both Eldridge and Harvey noted that 49 out of 50 U.S. states impose either term limits or retirement ages on their top judges, or have them chosen via election.
"The Supreme Court should be the gold standard for judicial ethics, yet conservative justices have accepted millions of dollars in gifts, attended private retreats with billionaire conservative donors, and failed to meet legal disclosure requirements," Harvey said. "Americans deserve a Supreme Court they can trust. It's time for Congress to follow the White House's lead and take action to rein in this out-of-touch court."
The Congressional Progressive Caucus seemed ready to take up that challenge.
"We are grateful to President Biden for taking action on this longtime priority of the progressive movement to address the crisis facing our democracy," Reps. Pramila Jayapal (D-Wash.) and Hank Johnson (D-Ga.) said in a statement. "We call on our colleagues in Congress to protect the foundation of our country by passing the Judiciary Act to expand the Supreme Court; Supreme Court Ethics, Transparency, & Recusal Act (SCERT) to require a binding code of ethics and transparency measures for justices; and the TERM Act setting term limits for justices."
Another way Congress could act would be to put forward Rep. Ro Khanna's (D-Calif.) Supreme Court Term Limits and Regular Appointments Act, which journalist John Nichols noted had many things in common with Biden's proposal.
In a thread on social media, Nichols put the movement for court term limits in the context of U.S. history.
"The U.S. has since its founding regularly amended the Constitution to guard against an imperial presidency—including the term limits outlined in the 22nd Amendment and ratified in 1951. Now, President Biden proposes judicial term limits to guard against an imperial Supreme Court," he wrote.
After describing the president's plan, Nichols continued: "President Biden's plan renews the system of checks and balances and also establishes binding ethics reforms for a court that has been embroiled in scandal in recent years—as justices have refused to recuse themselves from cases where they have conflicts of interest."
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Biden Belatedly Embraces Supreme Court Reforms as Right-Wing Justices Wreak Havoc
The president is reportedly planning to endorse term limits for Supreme Court justices—but not adding seats to the bench.
Jul 17, 2024
In the wake of rulings that have significantly weakened the regulatory authority of federal agencies, backed the criminalization of homelessness, and granted U.S. presidents sweeping immunity from criminal prosecution, President Joe Biden is reportedly preparing to endorse reforms that would establish term limits and a binding code of ethics for the nation's Supreme Court justices—changes that progressive advocates and many Democratic lawmakers have backed for years.
The Washington Postreported late Tuesday that Biden is "finalizing plans" to embrace the proposals "in the coming weeks" as the November presidential election against GOP nominee Donald Trump looms. Trump appointed half of the Supreme Court's right-wing supermajority during his first four years in the White House, paving the way for the overturning of Roe v. Wade and other hugely consequential decisions.
Biden told members of the Congressional Progressive Caucus—some of the most vocal advocates of substantial court reforms—during a call this past weekend that he was "about to come out with a major initiative on limiting the court," according to a transcript obtained by the Post.
But Biden has been facing and resisting pressure to back transformative changes to the high court for years, and it's far from clear that the reforms he's planning to put forth—which would require congressional approval—will satisfy campaigners or members of his party who are calling for high court expansion and other bold changes.
The president, who is facing calls to drop his reelection campaign, has consistently opposed Supreme Court expansion, which is backed by 75% of Democratic voters. The New York Timesreported Tuesday that Biden's forthcoming proposal will likely not back high court expansion.
Sean Eldridge, founder and president of the progressive advocacy group Stand Up America, said in a statement late Tuesday that "elected officials are catching up to the growing consensus among the American people that it is time for court reform."
Term limits for Supreme Court justices are broadly popular with the U.S. public, according to new polling from Data for Progress. Nearly 75% of voters across party lines support ending lifetime terms on the high court, the group found.
The specifics of Biden's plan are unclear. Legislation introduced by House Democrats would impose 18-year term limits on Supreme Court justices.
"The Supreme Court should be the gold standard for judicial ethics, but right now, nothing could be further from the truth," Eldridge said Tuesday. "That's why a supermajority of Americans support legislation to enact Supreme Court term limits and a binding code of ethics. It is time for our leaders to listen to the American people and take action to address the growing crisis on our nation's highest court."
"We urge President Biden to support the Supreme Court Ethics, Recusal, and Transparency Act and the TERM Act, which would establish term limits for current and future justices," he added.
Even in the aftermath of rulings that have directly undercut his agenda—such as the high court's decision last year to block his student debt cancellation plan—Biden has dismissed more ambitious proposals to overhaul the Supreme Court, including adding more justices to the bench.
"If we start the process of trying to expand the court, we're going to politicize it maybe forever in a way that is not healthy, that you can't get back," Biden said last June, ignoring the reality that the high court has already been packed by Republicans.
Elie Mystal, The Nation's justice correspondent, argued Tuesday that term limits and other proposed court reforms are doomed to fail "if you don't expand the court."
"The only way to get term limits is to appoint a majority of justices who think term limits are constitutional," Mystal wrote. "And right now, I don't even know if there are three justices who think they're constitutional, much less the necessary five."
"So, again, the constitutional way to bring the Supreme Court to heel," he added, "is to expand it, then pass your ethics bills and term limit bills, which will then be upheld by the newly expanded court."
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Alito’s Upside-Down Flag Signals That Our Constitutional System Is in Extreme Danger
A breach of this magnitude—in a case that implicates the health of our democratic institutions, by a justice that hasn’t shown a single shred of contrition—is a fit topic for robust political intervention.
May 23, 2024
In January 2021, the upside down American flag had become a banner for former U.S. President Donald Trump’s effort to block the peaceful transfer of power. Armed insurrectionists carried it into the U.S. Capitol on January 6. Eleven days later, even as National Guard troops still guarded the Capitol and the Supreme Court building itself, Justice Samuel Alito flew the insurrectionists’ flag outside his Virginia home.
This was far more than an act of indiscreet partisanship, troubling though that might have been. We’ve had those before, from Sandra Day O’Connor backing George W. Bush to Ruth Bader Ginsburg mocking Trump. Justices are human, and sometimes they slip up.
No, this was not a gaffe. It was a senior government official hoisting the banner of a violent insurrectionist movement devoted to overturning a core constitutional principle. At the time, there were numerous cases before the court in which the justices swatted away Trump’s false claims of a stolen election.
In response to the latest scandal, Alito has shrugged. That is a powerful demonstration of the dangerously emboldening effects of lifetime power.
And now this term alone, three major cases have been argued that go straight to the misconduct that marked the “Stop the Steal” effort. Already Alito joined the majority in rejecting Colorado’s effort to keep Trump off the ballot because he had engaged in an insurrection. The court is considering a challenge to the use of federal criminal law that could toss the convictions of 350 insurrectionists who stormed the Capitol.
And of course, Alito is part of the Supreme Court’s most egregious intervention on Trump’s behalf—its refusal to allow the timely federal prosecution of the former president. Special Counsel Jack Smith asked for a ruling confirming that Trump is not immune from prosecution in December 2023. Instead, Alito and his colleagues scheduled arguments for the last hour of the term and seemed to make up a doctrine of wide immunity for some criminal misconduct on the spot. Stop the steal? Start the stall.
Alito has long been inscrutably angry, unwaveringly dogmatic, and the most predictably partisan of all justices. But his growing brazenness still shocks. Judges are required to “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” There is simply no question that Alito has breached the rules. Of course he should recuse himself from consideration of the Trump immunity case and the other cases dealing with January 6. Of course he won’t.
So in the face of this kind of brazenness, what to do?
To start, Congress must finally pass a binding code of conduct for the justices. The current code, which the court announced in November, is vague and toothless. It was always a bid to forestall congressional action.
Last year, Alito told The Wall Street Journal, “I know this is a controversial view, but I’m willing to say it. No provision in the Constitution gives [Congress] the authority to regulate the Supreme Court—period.” That’s silly. As my colleagues Jennifer Ahearn and Michael Milov-Cordoba recently documented in a well-timed law review article, Congress has a major role to play in enforcing Supreme Court ethics. Congress can, and repeatedly has, expanded and shrunk the size of the court. It can change the court’s jurisdiction. It has set rules for recusal and financial disclosure. Congress even wrote the justices’ first mandatory oath of office way back in 1789. As Justice Elena Kagan wisely responded last year, “It just can’t be that the court is the only institution that somehow is not subject to checks and balances from anybody else. We’re not imperial.”
Congress can also demand that Alito answer questions under oath, rather than hiding behind incomplete press releases (and his wife). Maybe it can do more.
A breach of this magnitude—in a case that implicates the health of our democratic institutions, by a justice that hasn’t shown a single shred of contrition—is a fit topic for robust political intervention.
And, as we’ve said before, it’s time for term limits. In response to the latest scandal, Alito has shrugged. That is a powerful demonstration of the dangerously emboldening effects of lifetime power. Nobody should hold too much power for too long.
And where is Chief Justice John Roberts? He often purports to be an institutionalist and tries to curate the credibility of the court. He knows that public approval for the high court has plunged to nearly its lowest level ever recorded in polls. That goes beyond a reaction to Dobbs and other activist rulings—it reflects wide public dismay with what has become a partisan institution.
Ultimately, this kind of power grab should be a part of the national debate in our national election. Where is President Joe Biden? He seems reluctant to engage, clinging to an outdated reverence many liberals still have for the court as an institution. But as conservatives taught us for decades, it is entirely appropriate for the Supreme Court, its actions, and its impact, to be a major part of public debate.
The U.S. Flag Code instructs that the upside down flag should not be flown “except as a signal of dire distress in instance of extreme danger to life or property.” Today it is our constitutional system that is in extreme danger—but not in the way Alito and his allies believe. If Alito won’t voluntarily do the bare minimum to protect our democracy, the coequal branches should do everything they can to force him to do so.
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