President Joe Biden is proposing sweeping changes to the U.S. Supreme Court, which he says is in breach of its duty.
But with his own presidency winding down, it stands an uncertain chance of passage at best, even with the support of likely Democratic presidential nominee Kamala Harris.
“Anybody who tells you that has a chance of passing needs to stop dipping into his ketamine stash,” Republican Sen. John Kennedy told NOTUS. “When it gets to Capitol Hill, it is as dead as Woodrow Wilson.” House Speaker Mike Johnson called the proposal “dead on arrival” in the House.
The latest Supreme Court term delivered rulings that have called into question the neutrality of some of its justices, including the 6-3 decision to grant immunity to presidents for crimes committed in office. Biden, in his final stretch at the White House after announcing he will not seek reelection, wants to tackle a reformation of the court and its contours, as polling suggests that Americans’ approval for the court remains at a record low, particularly after it overturned Roe v. Wade.
“I have overseen more Supreme Court nominations as senator, vice president and president than anyone living today,” Biden wrote in an op-ed published Monday and echoed in remarks he made later in the day in Texas. “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 outlined his proposals while delivering remarks to commemorate the 60th anniversary of the Civil Rights Act. He first suggests a constitutional amendment to “make clear that there is no immunity for crimes a former president committed while in office,” countering the ruling of the court in July.
“We’re a nation of laws, not kings and dictators,” Biden said. “No other president in our history has asked for this kind of immunity for criminal action. And no president, not me or anyone, should be given an exception.”
Biden has two major calls for the justices themselves.
One is a binding code of conduct requiring justices to “disclose gifts, refrain from public political activity and recuse themselves from cases in which they have conflicts of interest.”
Critics called on Justice Samuel Alito to recuse himself from cases stemming from Jan. 6 after two flags adopted by Capitol insurrectionists were seen waving outside his home. (Alito said that the flags were his wife’s doing and that he had no involvement in flying them.) They had the same demand for Justice Clarence Thomas after the discovery of his unreported trips paid for by conservative billionaire and Republican donor Harlan Crow.
And as the only branch of the U.S. government giving its members lifetime seats, Biden hopes to impose term limits to make sure the Supreme Court’s makeup is in constant flux.
“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,” Biden wrote in the op-ed.
Senate Democrats expressed agreement with the goals Biden laid out while acknowledging the tough path forward in getting them enacted.
“We’ll see whether that’s possible or not,” Sen. Sheldon Whitehouse said. “It is certainly a really significant and useful step forward.”
Sen. Peter Welch told NOTUS that he does believe that issuing term limits for the justices could eventually get bipartisan support if they “get the politics as much as we can out of the court.”
“But, you know, we’re in the campaign season, so it’s really unlikely that we’ll be successful,” Welch said.
Sen. Richard Blumenthal, though, suggested it’s a worthwhile issue for the party to message on ahead of November.
“For a number of elections now, I have felt Republicans make the Supreme Court an effective issue, and Democrats ignore it,” Blumenthal said. “We should be talking more about it. I think the American people are beginning to get it when they see some of these justices with ethical lapses that are just beyond the pale — not little technical failures, but just defiant and arrogant lapses in basic ethics.”
In part, Biden’s suggestions for reform came from a bipartisan presidential commission on the Supreme Court set up when he came into office. Liberal and conservative scholars were chosen for the commission to provide possibilities for court reform in the face of growing threats toward democratic institutions. The commission’s final report suggested the potential for bipartisan support on term limits. The president did not take up the idea fully until now.
Vice President Kamala Harris echoed Biden’s concerns in a statement on Monday.
“Today there is a clear crisis of confidence facing the Supreme Court as its fairness has been called into question after numerous ethics scandals and decisions after decision overturning long standing precedent,” Harris wrote. “These popular reforms will help restore confidence in the Court, strengthen our democracy and ensure no one is above the law.”
Republican senators cast doubt on the seriousness of the sweeping proposals, arguing they’re meant to boost the Harris campaign.
“I think he’s trying to create messaging points for Vice President Harris to run on,” Sen. Thom Tillis told NOTUS. “That’s all. It’s not a genuine proposal to Congress.”
Sen. Ted Cruz said he supports term limits, but called the president’s proposal another proof point that the Biden-Harris administration does not want an independent judiciary.
“Biden’s proposal today is an assault on the legitimacy of the court,” Cruz said. “It’s intended to undermine the court and weaken the rule of law.”
Some kept it short and simple.
“I hate all of it,” Sen. Josh Hawley said.
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Calen Razor is a NOTUS reporter and an Allbritton Journalism Institute fellow. Oriana González is a reporter at NOTUS.