Biden and Harris favor term limits and an ethical code for the Supreme Court and elimination of presidential immunity.
The infamous 920-page Project 2025, which provides a blueprint for a radical right-wing agenda under a second Donald Trump presidency, doesn’t recommend any reforms to the Supreme Court — and for good reason. The conservative extremists who seek to install Trump have already taken over the high court. But the reforms President Joe Biden advocates — and Kamala Harris endorses — could go a long way toward diluting the court’s unrestrained power. This also highlights the Supreme Court as a critical voting issue in the presidential election.
Trump and his supporters know that to secure and maintain power, a strongman must control the courts. During his presidential tenure, Trump solidified the radical conservative majority on the Supreme Court by appointing three right-wingers to solidify a six-person supermajority. He also installed 231 federal district court and appeals court judges. They are all serving life terms.
Biden’s suggested reforms would create term limits for members of the Supreme Court and establish a binding code of judicial ethics for them. A third Biden proposal would forbid immunity for a former president who committed crimes while in office.
Term Limits for Supreme Court Members
On July 29, the White House issued a release that said, “Term limits would help ensure that the Court’s membership changes with some regularity; make timing for Court nominations more predictable and less arbitrary; and reduce the chance that any single Presidency imposes undue influence for generations to come.” Under Biden’s proposal, the president would appoint a member to the Supreme Court every two years, and that member would spend 18 years in active service on the high court.
In an op-ed published the following day in The New York Times, Berkeley Law School Dean Erwin Chemerinsky, a vehement critic of the right-wing Supreme Court, argued that Biden’s suggested term limit “makes enormous sense” but has “little chance of being enacted.” Chemerinsky notes that several members currently on the court may well serve more than 30 years, adding, “That is too much power for too long in one person’s hands.” But he contends that instituting term limits would necessitate a constitutional amendment because Article III, Section 1 of the Constitution says: “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour.”
Congressional Republicans would oppose amending the Constitution to create term limits, Chemerinsky writes. Moreover, the amendment process would be “unwieldy and time consuming.” Constitutional amendments require a request by two-thirds of both houses of Congress or two-thirds of the states at a constitutional convention. Then three-quarters of the state legislatures or three-quarters of conventions convened in each state must agree to ratification of the amendment. If the proposed term limits do not apply to current members of the court, Chemerinsky maintains, “they will not make a difference for a very long time.”
Several prominent constitutional scholars disagree with Chemerinsky’s analysis. In a comprehensive report, the Brennan Center for Justice argues that congressional implementation of 18-year active term limits for members of the court “is consistent with the Constitution’s text and structure” and “with the ways in which Congress has long regulated the Court, including the existing system of senior judges.” In 2005, 50 constitutional law professors, including Harvard’s Laurence Tribe and Yale’s Bruce Ackerman, proposed that Congress pass a statute to enact term limits for members of the Supreme Court.
But even assuming term limits could be instituted without a constitutional amendment, the current hopelessly polarized Congress is unlikely to enact legislation limiting Supreme Court terms.
“No One Is Above the Law Amendment”
Biden is also proposing the “No One is Above the Law Amendment” to the Constitution to reverse the frightening Supreme Court decision in Trump v. United States. That ruling essentially means that a president is now a “king above the law,” as Sonia Sotomayor wrote in dissent. It confers on presidents absolute immunity from prosecution for core official acts and presumptive immunity for other official acts. That means a president will have absolute immunity for official acts done in the course of executing his constitutional powers or implementing a federal statute, and presumptive immunity for acts committed in “the outer perimeter of his official responsibility.” The six right-wingers admitted that it’s difficult to distinguish between official and unofficial acts. The proposed amendment would state that the Constitution doesn’t confer immunity from federal criminal indictment, trial, conviction or sentencing for former presidents.
Chemerinsky says there is little chance that such a constitutional amendment would be adopted, for the same reasons he cited about term limits.
Binding Ethical Code for Supreme Court Members
Finally, Biden proposes that Congress pass a binding code of ethics for members of the Supreme Court, which would require them to disclose gifts, refrain from public political activity, and recuse themselves from cases in which they or their spouses have economic or other conflicts of interest. “Every other federal judge is bound by an enforceable code of conduct,” Biden wrote in a Washington Post op-ed, “and there is no reason for the Supreme Court to be exempt.”
Chemerinsky agrees that such a code would not require a constitutional amendment. But he notes that there are seemingly “insurmountable” political impediments to the passage of such legislation. Supreme Court ethics have become a partisan issue with the ongoing revelations of extravagant gifts Clarence Thomas and Samuel Alito have received, which create conflicts of interest in their rulings.
The Supreme Court Is the Most Conservative in 90 Years
The current Supreme Court is arguably the most conservative court in 90 years, with six right-wingers, three liberal members and no center. In the past two years, the high court has overturned Roe v. Wade; eliminated affirmative action; weakened the authority of administrative agencies to protect workers, health, safety and the environment; imperiled immigrants, marriage equality and LGBTQ rights; and granted immunity to former presidents for their lawbreaking while in office.
A nearly unprecedented majority of voters are disaffected with the Supreme Court. A Gallup poll revealed that 52 percent of voters disapprove of the court’s rulings, particularly the decimation of abortion rights and the grant of presidential immunity. An Associated Press-NORC poll found that only 16 percent of Americans expressed “a great deal of confidence” in the Supreme Court. And a Fox News poll showed that 78 percent of voters favor 18-year term limits for members of the Supreme Court.
If enacted, Biden’s proposed reforms could eventually lead to the reversal of some of the court’s most egregious decisions. But the adoption of those reforms faces overwhelming obstacles. Meanwhile, if Trump is elected, he would likely have the backing of the Supreme Court as he implements his priorities on Project 2025’s agenda.
Trump may also have the opportunity to replace current members of the court and expand the six-member radical supermajority. The liberal Sotomayor, who is in ill health, could be replaced by a conservative. Some of the older right-wingers like 76-year-old Clarence Thomas and 74-year-old Samuel Alito might be exchanged for younger members who could wreak havoc for decades to come. Between the makeup of its members and its lack of accountability, the stakes for the Supreme Court are enormous in the forthcoming presidential election.
Copyright Truthout. Reprinted with permission.
