President Joe Biden is reportedly considering overhauls to the federal judiciary, including the imposition of term limits for Supreme Court justices and a binding code of ethics — a move experts say resembles more of a politically-calculated Hail Mary than a feasible policy proposal.
It’s not immediately clear when Biden may announce his backing of reforms for the federal judiciary, but it’s highly unlikely any such measure would pass both chambers of Congress nor hold up to constitutional muster if he issues an executive order.
“President Biden’s Supreme Court ‘reform’ has no chance to pass out of the Judiciary Committee,” House Judiciary Chairman Jim Jordan (R-OH) said, emphasizing that Biden’s plan would face impossible prospects in the Republican-controlled House of Representatives.
Reports indicate the president is expected to call for term limits on Supreme Court justices in his proposal, which would vastly cut down on the typical tenure of justices, who enjoy lifetime appointments. At the national level, senators, presidents, and representatives serve six-, four-, and two-year terms, respectively.
Much of the angst about reforming the judiciary from Democrats has been spurred by the 6-3 Republican-appointed majority on the high court, which was shaped with the help of former President Donald Trump and then-Senate Majority Leader Mitch McConnell (R-KY), who pushed through Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. Conversely, Biden has only confirmed Justice Ketanji Brown Jackson, who replaced liberal Justice Stephen Breyer.
Democratic lawmakers have already introduced legislation in Congress that would impose 18-year term limits for justices, indicating that could also be Biden’s desired limit. The other main component of the reforms would seek to impose a binding code of ethics on the nine justices, as Democrats such as Sens. Sheldon Whitehouse (D-RI) and Dick Durbin (D-IL) have ramped up their calls to investigate the high court.
Last year, the Supreme Court adopted a specific code of conduct after multiple reports from the nonprofit outlet ProPublica about Justices Clarence Thomas and Samuel Alito, which effectively accused the justices of having engaged in ethical violations despite no clear evidence that their decisions from the bench were influenced by third-party groups or individuals.
But Republicans lawmakers and conservative groups pushed back vehemently against any idea of Biden reforming the judiciary, especially as his reported proposal comes at a time when his campaign has faced tumult following the first debate with Trump last month.
“We all realize the kind of electoral nightmare Joe Biden is living right now,” Carrio Severino, president of judicial advocacy group JCN and a former clerk to Thomas, said. “But this is not going to solve it, and he seems to be throwing a bone to some of the top ticket items of left-wing dark money groups, maybe trying to help, hoping to reassure or reinvigorate some of his donors, who I’m sure are concerned at this point. But there’s no way this is going to happen.”
Public opinion is also not on the side of major judiciary overhauls from the executive branch. Nearly 72% of registered voters believe that the politicization of the Supreme Court threatens judicial independence and 69% do not want Congress “taking over and setting rules for judicial ethics,” according to a poll from First Liberty Institute, which interviewed 1,100 voters.
“The last thing we need in this country right now is a Supreme Court coup that would threaten judicial independence and our democratic republic. This is a radical attempt by a desperate politician,” Kelly Shackelford, president and chief counsel for FLI, said.
Biden’s potential backing of Supreme Court reforms marks an about-face from his position in 1983, when he called Franklin D. Roosevelt’s plan to impose term limits on older justices and expand the size of the court “boneheaded” at the time. In 2020, he advocated against adding or subtracting more justices and vowed to assemble a commission to analyze whether any forms of court reform were viable.
That commission issued a final report in December 2021 and explored various proposals for court reform, including expansion and term limits, though it did not endorse any of them.
The term limits and ethics code plans would need to pass a Republican-controlled House and require 60 votes from the Senate, which Biden would be unlikely to get before or after the November election, which is expected to be closely contested.
However, if Democrats could find a way to eliminate the filibuster, which sets the 60-vote threshold in the Senate, the plans could be passed with simple majorities in both chambers.
A constitutional amendment implementing the reforms is even more unlikely to be passed. It would need two-thirds support from both chambers and then approval by three-fourths of state legislatures. The latter is close to impossible, given that Republicans hold 56 state chambers to Democrats’ 41.
Reports surrounding Biden’s judicial reforms also cited his desire to “eliminate broad immunity for presidents and other constitutional officeholders,” a reference to the Supreme Court’s latest decision granting some immunity for Trump. However, this too would face challenges due to the difficulty of passing constitutional amendments.
CLICK HERE TO READ MORE FROM THE WASHINGTON EXAMINER
Trump, in a statement on Truth Social, accused Democrats of attacking the Supreme Court with the proposed reforms.
“The reason that these Communists are so despondent is that their unLawful Witch Hunts are failing everywhere,” Trump wrote. “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.”
