President Joe Biden, who spent 36 years in the Senate, argues that half that time—18 years—is long enough to serve on the Supreme Court.
Biden’s long-shot package of proposed Supreme Court reforms comes under six months before he leaves office and almost three years since a presidential commission made some of the same recommendations.
Vice President Kamala Harris, now Democrats’ presumptive presidential nominee, quickly took up the proposals for imposing term limits on Supreme Court justices—though without a constitutional amendment—and a new ethics code for the high court
Seemingly out of place in Biden’s package of Supreme Court reforms is a proposed constitutional amendment to do away with presidential immunity for alleged crimes committed by a president while in office.
In a 6-3 ruling last month, the Supreme Court held that much of the federal case against former President Donald Trump for challenging the 2020 election outcome could not be prosecuted because of presidential immunity. Although suggested after a Supreme Court ruling, Biden’s proposed constitutional amendment would not affect the high court itself.
However, Biden isn’t proposing a constitutional amendment to set term limits for the Supreme Court—even though Article III of the Constitution, which covers the judicial branch, says judges may “hold their office during good behavior.”
That wording has been widely understood to mean a lifetime appointment. The current means for removing a Supreme Court justice is through the impeachment process.
“[W]e have had term limits for presidents for nearly 75 years. We should have the same for Supreme Court justices,” Biden wrote in a Washington Post op-ed. “The United States is the only major constitutional democracy that gives lifetime seats to its high court.”
In making the comparison in the op-ed, Biden didn’t mention that imposing presidential term limits required ratification of the 22nd Amendment to the Constitution.
“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,” wrote Biden, who served in the Senate for 36 years before becoming Barack Obama’s vice president—twice as long as his proposed term limit for Supreme Court justices.
Senate Minority Leader Mitch McConnell, R-Ky., said during a floor speech that Biden’s proposals would “eliminate the Supreme Court as we know it.”
“The president said he wants to term-limit his own justices. Nevermind what the Constitution says. Nevermind the advise and consent role of the Senate,” McConnell said Monday. “President Biden and his leftist allies don’t like the current composition of the court, so they want to shred the Constitution to change it.”
Despite the reference to appointing a justice every two years, Biden’s proposal doesn’t seem to be a push to add justices to the high court, which some on the Left have supported, said Thomas Jipping, a senior legal fellow at The Heritage Foundation.
Rather, the proposed formula—if implemented—could take decades to implement.
This approach is similar to a bill from Senate Democrats late last year that called for appointing a new Supreme Court justice every two years; incumbent justices wouldn’t be forced to retire, but would hear a smaller number of cases.
“This would be a way to get around needing a constitutional amendment,” Jipping told The Daily Signal.
The Constitution created the Supreme Court, while Congress created the lower courts, so Congress would have limited jurisdiction over Supreme Court reforms, Jipping said.
“There has never been a problem [with the Supreme Court] that somehow term limits can solve,” Jipping said. “The debate has never been about how long the justices will serve. It has always been about what kind of justices they will be, whether they serve three years or 30 years. … This will make the confirmation problem worse as you have more vacancies and more nominations; we will have more disgraceful scenes in the Senate.”
Third, Biden has called for an “enforceable” ethics code for justices that would require them to recuse themselves from certain cases, disclose gifts, and refrain from political activity.
Several liberal organizations have targeted Justice Samuel Alito over flags flown on his properties, as well as Justice Clarence Thomas over gifts he accepted.
Biden’s proposal is similar to a bill introduced last year by Sen. Sheldon Whitehouse, D-R.I.
“None of these are new ideas,” Jipping said.
Biden’s op-ed in The Washington Post makes only a passing reference to the December 2021 report from the Presidential Commission on the Supreme Court of the United States, which the op-ed says “informed some of these proposals.”
“Why now? Why justices on the Supreme Court? Why not lower court judges?” Jipping asked. “An independent judiciary is something we should protect, not something we should destroy.”
