President Joe Biden on Monday proposed sweeping changes to the US Supreme Court, including term limits and a binding code of conduct for its nine justices, but a deeply divided Congress means the proposals have little chance of enactment.
Biden called for the revamp, as well a constitutional amendment to eliminate broad presidential immunity recognised in a July 1 Supreme Court ruling involving former president Donald Trump, in an opinion piece published in the Washington Post. Biden is due to deliver a speech at the presidential library of former president Lyndon B. Johnson in Austin, Texas, later in the day.
“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,” Biden wrote in the opinion piece.
Biden called on Congress to pass binding, enforceable rules that require the 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. He also urged the adoption of an 18-year term limit for the justices, who currently serve life tenures.
Biden issued his proposals a week after ending his reelection bid and endorsing Vice-President Kamala Harris as the Democratic candidate to face Trump, the Republican nominee, in the November 5 US presidential election. Biden, who earlier in his presidency convened a commission to study Supreme Court changes has appointed one of the nine justices, liberal Ketanji Brown Jackson.
“In our democracy, no one should be above the law. So we must also ensure that no former president has immunity for crimes committed while in the White House,” Harris, a former prosecutor and California attorney-general, said in a statement on Monday.
Since the court in 2020 reached a 6-3 conservative majority, cemented with Trump’s three appointees, it has moved American law rightward.
In its immunity ruling, powered by the conservative justices, the court decided that Trump, in a federal criminal case involving his efforts to reverse his 2020 election loss, cannot be prosecuted for actions that were within his constitutional powers as president. It was the court’s first recognition of any form of presidential immunity from prosecution.
The court in recent years also has ended its recognition of a constitutional right to abortion, expanded gun rights and rejected race-conscious collegiate admissions, as well as blocking Biden’s agenda on immigration, student loans, Covid vaccine mandates and climate change.
Unlike other members of the federal judiciary, the Supreme Court’s justices have no binding ethics code of conduct. They are subject to disclosure laws requiring them to report outside income and certain gifts, though food and other “personal hospitality” such as lodging at an individual’s residence are generally exempted.
New code of conduct
The court in November adopted its first code of conduct after revelations about Justice Clarence Thomas accepting undisclosed travel from a wealthy benefactor. Justice Samuel Alito also has faced criticism from congressional Democrats after reports that flags associated with Trump’s bid to undo his 2020 loss flew outside his homes in Virginia and New Jersey. Alito has said his wife flew the flags.
Critics have said the new code of conduct does not go far enough because it allows justices to decide for themselves whether to recuse from cases and provides no enforcement mechanism.
Legislation would be required to impose term limits and an ethics code, but it is unlikely to pass Congress, with Democrats controlling the Senate and Republicans holding a majority in the House of Representatives.
Biden also proposed a constitutional amendment that would make clear that having served as president does not guarantee immunity from federal criminal indictment, trial, conviction or sentencing.
Such an amendment would be even more difficult to enact, requiring two-thirds support from both chambers of Congress or a convention called by two-thirds of the states, and then ratification by 38 of the 50 state legislatures.
After the July ruling on immunity, a Florida judge who was appointed to the bench by Trump threw out a federal criminal case involving the former president’s retention of classified documents after leaving office. Prosecutors have appealed that decision.
Trump is the first former president to have been indicted and the first to have been convicted. A jury in New York state court in May found him guilty of felony charges involving hush money paid to a porn star to avoid a sex scandal before the 2016 US election. Trump also faces states charges in Georgia over his efforts to overturn his 2020 election loss in that state.