The announcement would mark a major shift for Biden, a former chairman of the Senate Judiciary Committee who has long resisted calls for substantive reform of the Supreme Court. The potential reforms come in response to growing anger among advocates over the recent ethics scandal surrounding Justice Clarence Thomas and decisions by the new Supreme Court majority that have changed precedent on issues such as abortion and federal regulatory power.
Biden previewed the change on Saturday during a Zoom call with the Congressional Progressive Caucus.
“I’m going to need your help on the Supreme Court, because I’m going to be announcing big plans very soon to limit the power of the Supreme Court. I don’t want to announce it prematurely, but I’m going to be announcing big plans very soon to limit the power of the Supreme Court. … I’ve been working with constitutional scholars for the last three months, and I need help,” Biden said, according to a recording of the call obtained by The Washington Post.
Term limits and ethics measures would require congressional approval, which would be difficult with a Republican-controlled House and a narrow Democratic-controlled Senate. Under current rules, a 60-vote Senate vote is needed to pass a constitutional amendment. Constitutional amendments face many more hurdles, including the support of two-thirds of both houses, or approval by two-thirds of state legislatures and three-quarters of state legislatures.
No details of the policies Biden is considering have been released, and a White House spokesman declined to comment.
Shortly after The Washington Post published the article, former President Donald Trump criticized the move on Truth Social. “Democrats are trying to interfere in a presidential election and destroy our justice system by attacking their political opponents, the state of Maine, and the Supreme Court,” Trump wrote. “We must fight for fair and independent courts and protect our country.”
Biden’s private comments about his plans for the Supreme Court came more than two weeks after his shaky performance in the June 27 debate with Trump, which prompted some Democrats to call on him to step down as the party’s presidential nominee. Among those rallying to Biden are many liberals who have strongly supported calls for Supreme Court reform.
Four days after that debate, the Supreme Court ruled that Trump could not be prosecuted for official conduct during his first term, and within an hour, Biden called Laurence Tribe, a constitutional law professor at Harvard Law School, to discuss the decision and the pros and cons of reshaping the Supreme Court.
“Today’s decision continues the court’s recent attacks on a wide range of long-established legal principles in our country, from the evisceration of voting rights and civil rights, to the stripping away of women’s right to choose, to today’s ruling that undermines the rule of law in this country,” Biden said in a public statement later in the day.
The following week, Biden called Tlaib again, and the two discussed a Guardian opinion piece supporting Supreme Court reform, including term limits, enforceable ethics rules and a constitutional amendment to address presidential immunity.
Tlaib acknowledged that she spoke with Biden but declined to comment on the discussion.
During the 2020 presidential campaign, Biden rejected liberal calls to expand the Supreme Court but promised to create a commission to study possible changes. After he was elected, he made good on that promise, and the commission submitted a 294-page report to the president. Biden has not taken any action on the commission’s report since it was approved in December 2021.
The Supreme Court’s approval rating has fallen sharply in recent years, and Biden is trying to revive a faltering presidential campaign after a pair of politically disastrous debates.
Since he was elected, the Supreme Court has shifted sharply to the right. Roe v. Wade, It would end affirmative action in college admissions, overturn a 40-year-old ruling that weakens federal agencies’ powers, and end Biden’s student loan forgiveness program. Biden has denounced the Supreme Court’s recent decision on presidential immunity, arguing on July 1 that the ruling should motivate Americans to vote for him again.
“We are all equal before the law. No one is above the law, not even the president of the United States,” Biden said in a speech at the White House. “Today’s Supreme Court decision on presidential immunity fundamentally changes that.”
Eight Democratic senators have co-sponsored a bill that would limit Supreme Court justices to 18-year terms with a new justice appointed every two years. The nine most recently appointed justices would preside over appellate cases, while the other justices would either preside over trial cases or act as substitutes if the nine most recently appointed justices have a conflict of interest or are otherwise unable to preside over a case.
The bill was introduced by Sen. Sheldon Whitehouse (D-Iowa) and is co-sponsored by Democrats including Sens. Cory Booker (NJ), Richard Blumenthal (CT), Alex Padilla (California), Jeff Merkley (Oregon), Peter Welch (VT), Brian Schatz (Hawaii), and Kirsten Gillibrand (NY).
Democrats have also introduced other bills to address ethics concerns at the Supreme Court, including a bill by Sen. Elizabeth Warren (D-Mass.) and Rep. Pramila Jayapal (D-Wash.) that would include changes such as capping gifts judges can receive, requiring the court to adhere to a code of judicial conduct, and requiring it to issue written challenges to judges at the request of litigants.
Ann E. Marimow contributed to this report.
