WASHINGTON — President Joe Biden is seriously considering legislative proposals that would dramatically alter the Supreme Court, including imposing term limits and an enforceable code of ethics on the justices, according to a person familiar with the ongoing discussions.
Biden’s proposals to overhaul the court, which could be unveiled in the coming weeks, would need congressional approval, something that is likely to be a long shot, given Republican control of the House and the slim Democratic majority in the Senate.
The president is also considering calling for a constitutional amendment that could limit the broad presidential immunity that the court’s conservative majority backed at the end of its term this year, the person said, speaking on the condition of anonymity because the president’s deliberations have not been made public.
Biden has called the court’s ruling a “dangerous precedent” that means “that there are virtually no limits on what a president can do.” But an amendment would face even greater challenges, requiring two-thirds votes in Congress or at a convention called for by two-thirds of the states, followed by ratification by three-fourths of the state legislatures.
In a virtual meeting over the weekend with members of the Congressional Progressive Caucus, Biden said he was considering changes to the court but did not provide any specifics to the lawmakers.
“I’m going to need your help on the Supreme Court, because I’m about to come out,” he said, referring to the proposals under consideration. “I don’t want to prematurely announce it, but I’m about to come out with a major initiative on limiting the court and what we do.”
He added, “I’ve been working with constitutional scholars for the last three months, and I need some help.”
It appeared that Biden meant that he would need help passing the legislation required to advance his proposals through Congress, though it was not clear whether he would try to do that this year or in a second term if he won in November.
Biden’s rival, former President Donald Trump, lashed out at the president’s ideas on social media on Tuesday afternoon, accusing Biden and Democrats of “desperately trying to ‘Play the Ref’ by calling for an illegal and unConstitutional attack on our SACRED United States Supreme Court.”
He added: “We have to fight for our Fair and Independent Courts, and protect our Country. MAGA2024!”
Biden’s consideration of major court changes, which were reported earlier by The Washington Post, is a shift for the president, who for years has rebuffed progressive activists and academics who have urged him to make changes to limit the power of the conservatives on the court. A commission created by Biden in 2021 to examine the issues did not make any specific recommendations, and the president did not take any action.
Since then, the court, which has a 6-3 conservative majority, has overturned Roe v. Wade, blocked gun control measures, eliminated affirmative action in college admissions, eroded its adherence to court precedents and diminished LGBTQ+ rights.
Several of the justices have also found themselves at the middle of ethics scandals. Justice Clarence Thomas failed to disclose lavish gifts and luxury travel, while the wife of Justice Samuel Alito flew flags suggesting allegiance with rioters at the Capitol on Jan. 6, 2021.
Laurence H. Tribe, a constitutional law professor at Harvard Law School, said Biden called him July 1, the day after the court ruled that Trump was entitled to substantial immunity from prosecution, vastly expanding presidential power.
Tribe said Biden called him a second time, July 8, to discuss the issues further.
He declined to discuss the specifics of his conversation with the president but said it was broadly about how to respond to the court as an institution, in terms of possible reforms, and how to respond to its decisions by amending the Constitution.
“My view — it’s rather overdue,” said Tribe, who served on the president’s commission. He said the court’s decisions on abortion, court precedent and immunity were reasons to consider major changes to the way it does business.
Tribe conceded that the changes would be difficult to enact, but he said he did not think that should prevent Biden or other political leaders from trying.
“The more it would take, the more urgent it is to begin the process now,” he said. He noted that the 26th Amendment, which lowered the voting age to 18, took only seven months from introduction to ratification. It was ratified July 1, 1971.
“The difficulty of achieving it should not be overestimated,” he said.
The president’s consideration of the court changes comes against the backdrop of the 2024 campaign against Trump. Biden is in a fierce fight for another term in office, and proposals to change the court are likely to appeal to many of his supporters, especially in the wake of a series of decisions by the conservative justices.
The president is unlikely, however, to embrace the most radical idea pushed by progressive activists: packing the court with more liberals by expanding the number of justices from the current nine who sit on the bench. In 2023, Biden rejected that idea.
“If we start the process of trying to expand the court, we’re going to politicize it maybe forever in a way that is not healthy,” he said at the time in an interview with MSNBC.
The president’s commission, while not taking a position on term limits for the justices, noted that such a move appeared to enjoy “widespread and bipartisan support,” the commission’s report said.
It noted that the commission had taken testimony from a bipartisan group of court experts who said that a single, 18-year term limit “warrants serious consideration.”
Public polling suggests that if he proceeds, some of the proposals will be popular with Americans. Several surveys over the past few years show that large majorities support term limits for the justices and imposing an ethics code.
This article originally appeared in The New York Times.
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