President Biden, appearing at a fundraiser with Jimmy Kimmel and former President Barack Obama over the weekend, said, “The next president will likely nominate two new justices to the Supreme Court. He went on to say that former President Donald Trump's appointees, who are felons, are “very negative about individual rights,” and warned that if Trump wins, “we'll have two more people flying the flag upside down.”
“The Supreme Court has never been more hung in the balance than it is today,” Biden said, listing several rights that Justice Clarence Thomas has said should be reconsidered, including access to contraception and same-sex marriage.
Blocking further appointments by President Trump would be a strong selling point for Biden. But Biden may not get the chance to appoint justices, at least not anytime soon. Moreover, the current Supreme Court's ideological excesses and ethical lapses call for serious, long-term reform of the court. Would Biden push for such a measure?
The White House has been silent on ethics reform, leaving the issue to Senate Democrats, who have inexplicably yet to bring a Supreme Court ethics bill passed by the Senate Judiciary Committee last year to the floor for a full vote. There's no reason for Biden not to publicly push for the bill.
Follow this authorJennifer Rubin's opinion
Moreover, to the dismay of court reform advocates, Biden has never embraced further structural reform. During the 2020 campaign, he resisted calls for term limits and expanding the courts. After he was elected, he appointed a bipartisan, all-star commission to study court reform. The commission released an impressive report, but Biden took no action.
The Commission's report is worth revisiting. Although the Commission made no uniform recommendation, it made a compelling case for term limits: “Proponents of term limits argue that they help ensure that the membership of the Supreme Court is broadly responsive to electoral outcomes over time; they make Supreme Court appointments more predictable and less arbitrary, reduce the possibility of excessive power being concentrated in any one justice for an extended period of time, and strengthen Supreme Court decision-making by ensuring regular rotation of decision-makers, while preserving judicial independence by guaranteeing long terms and lifetime salaries.”
The commissioners also recognized significant bipartisan support among the public and scholars. They wrote: “In testimony before the committee, a bipartisan group of experienced Supreme Court practitioners concluded that 18-year, non-renewable terms 'merit serious consideration.'” Leading think tanks and their leaders also support the concept, as do both liberal and conservative constitutional scholars.
Opponents of committee term limits have questioned the constitutionality of statutory term limits and pointed to the difficulty of passing a constitutional amendment and the time it would take for staggered terms to make any significant changes to the makeup of the Supreme Court.
The committee also considered a more controversial proposal: to expand the size of the Supreme Court (perhaps to 13 to match the number of circuits, with new appointments made over multiple presidential terms). There is nothing magical about the current number of nine justices, and it hasn't always been that way; it is small compared to courts in other Western democracies. Still, opponents of expansion feared the number of justices would become unmanageable, and expressed a vague recognition that the “enduring bipartisan norm against expanding the Supreme Court” should not end (the bipartisan norm against overturning decades of precedent seems to have been pushed aside).
Unfortunately, the White House did not adopt any of these ideas, but that was before the Supreme Court's recent string of outrages, such as the Dobbs decision that overturned abortion rights. The President should now adopt one or more of these proposals and make Supreme Court reform a campaign issue.
Biden's advisers may argue that court reform is unattainable given Republican filibuster capabilities. But those same arguments have not prevented Biden from pushing Roe v. Wade into law, a decision that would almost certainly face a filibuster. If he is willing to modify the filibuster to protect abortion, there is no reason for him to withhold support for court reform that would help protect the rights on Thomas' target list.
Moreover, term limits have become more popular since the commission released its report. A July 2022 AP-NORC poll found that “67% of Americans support a proposal to set justices' terms at a specific number of years, instead of life terms, including 82% of Democrats and 57% of Republicans.” Similarly, a June 2023 University of Massachusetts Amherst poll found that 65% of Americans favor term limits for judges. Last month, Hart Research released a poll for the democracy advocacy group Stand Up America that found that 64% (including 51% of Republicans) support term limits.
Term limits are also popular with legal scholars of all ideologies. Reuters reported in October that “a bipartisan group of legal experts, including federal appeals court judges and former U.S. attorneys general, supported limiting the terms of U.S. Supreme Court justices to 18 years on Wednesday, calling the proposal an 'important reform' that would reduce partisanship and improve the judiciary's overall reputation.” The group included conservatives such as Charles Fried, who served as attorney general under Ronald Reagan, and Akhil Reed Amar, a “fundamentalist” scholar at Yale Law School.
In short, Biden should align his policies with his rhetoric. Sticking with ethics reform would draw attention to the ethical lapses of Justices Thomas and Samuel A. Alito Jr. It would also put Republicans on the defensive and build consensus on the idea. With strong public support, Biden could push for term limits even if he is unwilling to embrace the more controversial idea of ​​expanding the court.
The Supreme Court's approval rating is historically low and its decisions have infuriated many voters, but the more attention it receives, the better for Democrats: If Biden wins and Democrats gain majorities in both houses of Congress, he could assert his authority to move legislation forward.
The Supreme Court is dysfunctional, unpopular and in dire need of reform. Biden knows it, and he should make Supreme Court reform a central election issue.
