Biden’s proposed judicial reforms’ feasibility and merit
By: Ella Botein
In the wake of several scandals and controversial decisions by the Supreme Court, President Biden and Vice-President Harris have endorsed three reforms to the judiciary: revoking immunity for former presidents, instituting term limits, and creating a binding ethics code. While these suggestions may have positive implications, they are unlikely to be achieved in the foreseeable future.
So far, Biden has not explicitly called for a Constitutional Amendment to bring about these reforms; however, it is likely that any such reforms passed by Congress in the form of a bill statute would be struck down by the Supreme Court as an unconstitutional violation of the separation of powers. For example, the Constitution guarantees the tenure of justices “during good Behavior,” a provision seemingly inconsistent with statutory term limits. A constitutional Amendment requires a two-thirds majority in each chamber of Congress as well as the approval of three-quarters of the states—a supermajority that is unlikely to be achieved if the current state of political polarization persists. Therefore, it is highly probable these changes are more reflective of a base mobilization political strategy ahead of the upcoming election than an indication of a true legislative agenda.
In the past few years alone, several allegations of impropriety have been made against sitting justices on the Supreme Court. These allegations include corruption through subsidized travel against Justices Thomas and Alito, as well as one charge against Justice Gorsuch for selling real estate to a firm whose case the Supreme Court is actively reviewing. An enforceable ethical code would be helpful in ensuring justices remain neutral and unbiased. The recent Supreme Court presidential immunity decision, which has attracted President Biden’s attention, is similarly concerning in that, much like the absence of an enforceable ethical code for the Supreme Court, a president may no longer see an incentive to follow laws, provided that his or her action occurs in an “official” capacity. The vagueness of the court decision that defined these terms exacerbates this excessive freedom, as it lacks a detailed definition of what constitutes “official capacity.”
President Biden’s third suggestion, term limits, also has potential advantages—such as reducing the gamesmanship in the nomination and confirmation of justices that lifetime tenure presents and making justices’ appointments more predictable. Every major constitutional democracy, excluding the United States, has some limit on the tenure of members for their top courts through fixed term limits or mandatory age of retirement. Moreover, no state within the United States, except Rhode Island, has its courts set up in such a manner.
Although Biden’s proposed judicial reform may have potential merit, constitutional issues likely present impediments to legislative enactment. Any attempts at passing these manifestos would be challenged and ultimately decided by the current Supreme Court. Biden and his advisers likely know this fact and are likely circulating these proposals to boost enthusiasm and turnout come November when Kamala Harris takes on Donald Trump in the presidential election.
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