Biden has long resisted calls to reform the Supreme Court, and the announcement Monday marked a major shift in his posture toward one of America’s three branches of government. After the addition of three justices nominated by Trump, the court has veered sharply to the right — overturning Roe v. Wade, ending affirmative action in college admissions and weakening federal agencies’ power by overturning a 40-year decision. The conservative majority also invalidated 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.
Vice President Harris, who appears poised to become the Democratic presidential nominee after Biden left the race this month, endorsed Biden’s proposals in a statement Monday morning. “These popular reforms will help to restore confidence in the Court, strengthen our democracy, and ensure no one is above the law,” she said.
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 would 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 the president is calling the “No One Is Above the Law Amendment,” states that 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 Tribe 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 decision not to disclose gifts of luxury travel from a billionaire benefactor, real estate sales and other financial transactions. Justice Samuel A. Alito Jr. has also come under criticism for what he said was his wife’s display of politically provocative flags outside the couple’s 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 justices have long followed federal law requiring them and other officials to file annual financial disclosures of gifts, investments and outside income, although Thomas and others have questioned whether certain gifts and expenditures must be reported.
Last fall, in response to criticism from Democratic lawmakers and outside experts about perceived ethics violations, Chief Justice John G. Roberts Jr. announced that the court had agreed to abide by an ethics code specific to the justices. But the new policy did not include any outside oversight of the justices’ individual decisions about whether to recuse from certain cases because of perceived or potential conflicts of interest. Nor did it provide a way to examine alleged misconduct — or to clear or sanction justices who might violate the rules.
The judiciary’s governing body, which is overseen by Roberts, did clarify last year that private jet travel should be reported on disclosure forms, and Thomas since then has reported such travel. He also amended past disclosures to include real estate deals that he had not previously reported.
At a judicial conference last week, Justice Elena Kagan said she would support the creation of a committee of judges to examine potential violations of the Supreme Court’s new ethics code. She called criticism about the inability to enforce the rules “fair,” but emphasized that she was speaking only for herself and that no enforcement plans are in the works.
As to term limits, Biden said Monday that they 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.
Nearly half of Americans support term limits for Supreme Court justices and about 60 percent believe that at least one Supreme Court justice should be investigated for ethical lapses, according to a public opinion survey released last week from the Annenberg School for Communication and Dartmouth College. But the survey shows public opinion of the court sharply divides along partisan lines, with most Democrats believing the Supreme Court should be overhauled while most Republicans do not.
Trump, who is again the Republican nominee for president, criticized the president’s plan Monday morning.
“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.”
Conservative judicial activist Leonard Leo, who advised Trump on his Supreme Court nominees, said the rulings by conservative justices have been consistent with their views — not driven by gifts from advocates or other potential conflicts of interest.
“Let’s stop pretending this is about undue influence. It’s about Democrats destroying a court they don’t agree with,” Leo, a leader of the Federalist Society, said in a statement. He added that he would support an ethics policy covering all branches of government, including a ban on all travel by private jet and appearances by judges at law schools, bar associations, liberal think tanks and other groups or events he said are funded by “left-wing billionaires.”
“Let me be clear: 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,” he said.
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.
