President Biden Proposes 3 SCOTUS Reforms

Their passage is highly unlikely—but setting that aside, do you support or oppose these ideas?

President Biden and Chief Justice Roberts shake hands at the 2024 State of the Union, as Justices Jackson and Kennedy look on (photo by Shawn Thew via Getty Images).

Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here.

President Joe Biden might be a lame duck, having withdrawn from the 2024 presidential race. But he has publicly declared that he will finish the rest of his term—and judging from this week’s news, he’s planning to make the most of his remaining time in office.

On Monday, in a speech at the Lyndon B. Johnson Presidential Library and an opinion piece in The Washington Post (gift link), President Biden outlined three proposals for reforming the U.S. Supreme Court. They’re preliminary and therefore short on details, but here’s a summary of their key points.

I’ve tried to keep it concise, but so much more could be written on these complex issues—like the 300-page report issued by President Biden’s Commission on the Supreme Court in December 2021. Each section begins by quoting the text of President Biden’s essay in the Post, followed by analysis from myself and others.

1. An amendment to overrule the immunity decision.

First, I am calling for a constitutional amendment called the No One Is Above the Law Amendment. It would make clear that there is no immunity for crimes a former president committed while in office. I share our Founders’ belief that the president’s power is limited, not absolute. We are a nation of laws—not of kings or dictators.

This is, of course, an effort to override the Court’s decision in Trump v. United States, recognizing fairly broad immunity for a president’s official acts. And because it’s a constitutional amendment, it frees us up to focus on policy considerations and what the law should be, not what the law currently is—or as Vice President Kamala Harris would say, “what can be, unburdened by what has been.”

As a procedural matter, I like the president’s willingness to propose a constitutional amendment. My own view is that the Constitution should be easier to amend, and more amendments should be floated more regularly—because otherwise the power to amend will atrophy, which it arguably already has.

As a substantive matter, I also support the amendment—but not strongly, and I’m open to persuasion. As previously explained, I don’t love the Trump opinion as a policy matter because my personal opinion is that a president violating the law is a greater threat to our polity than a cycle of presidents prosecuting their predecessors. So I have no problem with overriding it by amendment.

Note my word choice: while I don’t love the immunity opinion, I don’t hate it, and I’m not terrified by it. I think there’s a case to be made that critics of the ruling are reading too much into it, at least in terms of the breadth of the immunity it recognizes.

I urge you to read Professor Philip Bobbitt’s thoughtful essay in Just Security, “A Prudential Way Forward in Trump v. United States.” In this measured and elegant take on Chief Justice John Roberts’s opinion, Professor Bobbitt argues that the decision, properly construed, does not place the president “above the law.” Responding in more detailed (and persuasive) fashion to the dissents’ troubling hypotheticals than the Chief Justice did, Professor Bobbitt’s essay could be described as “stuff that I wish had been included in the Trump opinion.”

2. Term limits for the justices.

Second, we have had term limits for presidents for nearly 75 years. We should have the same for Supreme Court justices. The United States is the only major constitutional democracy that gives lifetime seats to its high court. 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. I support a system in which the president would appoint a justice every two years to spend 18 years in active service on the Supreme Court.

This proposal leaves many open questions, as noted by Professor Josh Blackman at The Volokh Conspiracy. For starters, is a constitutional amendment required?

The Good Behavior Clause of the Constitution provides that justices “shall hold their Offices during good Behaviour,” which has been interpreted as providing for life tenure. Some scholars who support or are at least open to Biden’s term-limits proposal as a policy matter, such as Dean Erwin Chemerinsky on the left and Professor Ilya Somin on the right, believe that as a legal matter, it must be implemented through a constitutional amendment.

But other scholars argue that this proposal can be enacted by an ordinary statute. For example, consider Professor Akhil Amar’s 2021 testimony before President Biden’s SCOTUS Commission. Under Amar’s proposal, an active justice after 18 years of service would transition to “Emeritus” status, not unlike senior status on a circuit court. An Emeritus Justice “would not routinely sit with active-service justices en banc, but would be available to do so in cases when the Court is short staffed,” and would perform other specified duties—perhaps sitting on circuit courts, as some retired justices currently do. But the Emeritus Justice would still be a justice, just as a senior judge is still a judge—consistent with the Good Behavior Clause.

What’s my take? Setting aside the issue of whether an amendment is required and evaluating this proposal as simply another proposed constitutional amendment, I support it. As a policy matter, the case for term limits is strong—which is why numerous senators, on both sides of the aisle, have expressed support for or at least openness to the idea over the years (as noted by Fix the Court).

I can’t make the case any better than Professor Amar, so I’ll just refer you to his 18 arguments in favor of 18-year term limits. One thing I’d highlight about his version of the proposal, with which I strongly agree: it would not apply to current justices, whom the Amar proposal denominates “Legacy Justices”—and whose “service, tenure, rights, and responsibilities on the Court shall remain unchanged, provided that at any time, a Legacy Justice may elect to take Emeritus status.”

In other words, the current justices would be grandfathered in exempt, and any term limits would be implemented only prospectively. This proposal should not be viewed as an effort to mess with the current composition of the Court by ousting Chief Justice Roberts, Justice Thomas, and Justice Alito. Instead, it should be about first principles and the optimal design for our constitutional system, not short-term political advantage.

3. An enforceable ethics code for the Court.

Third, I’m calling for a binding code of conduct for the Supreme Court. This is common sense. 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. Every other federal judge is bound by an enforceable code of conduct, and there is no reason for the Supreme Court to be exempt.

This proposal raises many issues, including who would enforce the code and how. If enforcement is handled by folks outside the judiciary, such as Congress, there could be a separation-of-powers problem. The Court itself would likely have the last word on the issue, barring a constitutional amendment. And given both the Trump ruling and the justices’ responses to congressional criticism on ethics issues, I think the justices would hold unconstitutional any attempt to have Congress police their ethics.

One possibility, recently suggested by Justice Elena Kagan, is that well-respected judges from the lower courts could be appointed by the Chief Justice to a committee tasked with enforcing the code. Opponents have raised both constitutional and practical concerns about this idea, which I don’t deny or dismiss. But I’d be open to at least giving this proposal a try. (And I like David French’s idea of having the committee members come exclusively from the ranks of senior rather than active judges, so their own Supreme Court ambitions wouldn’t affect their ethics judgments.)

Critics of this proposal have raised the specter of lower-court judges “going after” justices for ideological or partisan reasons, but I think this unlikely. The judiciary is culturally conservative and respectful of hierarchy, so I don’t think lower-court judges would lightly vote to censure a justice—i.e., judges would vote against justices only in fairly egregious cases of misconduct. And you could build in additional safeguards as well: for example, you could make sure the committee is “bipartisan,” i.e., composed of both Republican and Democratic appointees, and you could require a two-thirds or three-quarters supermajority before any justice is sanctioned.

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What are the chances of any of these proposals becoming reality? Vice President Kamala Harris replacing President Biden as the Democratic Party’s presumptive nominee shouldn’t change anything, since Harris immediately issued a written statement supporting the reforms after their announcement. In fact, based on some of her past statements and current advisers, “there are small signs that, if elected president, Harris would prioritize the issue more forcefully than Biden ever has,” per Politico.

The real problem is that these proposals require bipartisan support—which they most definitely do not have. In fact, Republicans and Democrats don’t even agree on whether there’s a problem to be solved.

Conservatives see Biden’s “reforms” as a “political assault on the Supreme Court,” according to the Wall Street Journal editorial board (gift link). As conservative lawyer Mark Paoletta put it, Biden’s package is a “dangerous proposal to destroy the Court’s independence” by trying to delegitimize or sideline conservative justices.

Or in the words of Leonard Leo, co-chair of the Federalist Society, “Let’s stop pretending this is about undue influence [on the justices]. It’s about Democrats destroying a Court they don't agree with.” Leo added, “If Democrats want to adopt an across the board ethics ban for all branches, I am in favor of that: no jets, no meals, no speaking honorariums, no gifts for anyone from anyone for any reason in any branch, starting with Congress”—a measure that Congress would be unlikely to adopt.

It’s clear, then, that President Biden’s proposals are not getting enacted anytime soon—if ever. But they’re still a worthwhile subject for discussion by legal and Supreme Court nerds—like the audience of Original Jurisdiction.

Readers, what are your views? If you were in charge, how would you structure the Court? Please share your thoughts in the comments to this post—a Notice and Comment (“N&C”) post, meaning that comments are open to all (not just paid subscribers). Thanks!

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