Biden is eyeing big changes for the Supreme Court. But he needs Congress to make them

Caption

President Biden is expected to announce his support for changes to the U.S. Supreme Court, including term limits and a mandatory ethics code. / Getty Images

President Biden is preparing to call for term limits and an enforceable ethics code for U.S. Supreme Court justices in what would be sweeping changes to the high court and the way it operates.

The proposals are a long shot because a constitutional amendment or congressional action — two routes that would likely be needed — are next to impossible in the current political climate. But the plans themselves mark a sea change for Biden who had previously resisted any changes to the court.

The proposals, first reported by the Washington Post, were confirmed by two sources who spoke on condition of anonymity because Biden's plans are not yet final. Once of the sources said they may not be rolled out for a couple of weeks.

The ideas were welcomed by ethics watchdogs. "The vast majority of the country, regardless of party, believes the justices should not serve for life but they should be subject to basic oversight like Congress and the executive are," said Gabe Roth, executive director of Fix the Courts, a group that advocates for Supreme Court reform.

Justices to the high court enjoy a lifetime appointment and can decide on their own whether to adhere to the court’s newly adopted ethics rules. Scrutiny of the court has heightened amid scandals involving Justice Clarence Thomas, who took free trips and received gifts from a conservative mega donor, and Justice Samuel Alito, whose wife flew two flags associated with the far-right movement loyal to former President Donald Trump.

Biden has been pressed on this issue by progressives

With four months left until the presidential election, Biden, who is in a statistical dead heat with Trump, is trying to appeal to his party’s left flank, which supports an overhaul of the Supreme Court — though the White House believes that the issue polls well among independent voters, Republican voters, and a large swath of important demographic groups.

On Saturday, Biden spoke about the plans with a group of progressive lawmakers — one of a series of calls he has held with Democrats to shore up support after he froze up in a debate last month with Trump, prompting questions about whether he should stay in his race for a second term.

Biden had planned to lay out his thinking about the court in a speech in Austin at the LBJ Library on Monday. But that trip — timed to mark the 60th anniversary of the Civil Rights Act — was postponed after the attempted assassination of Trump.

He has made the court a bigger part of his campaign message

Biden has increasingly stoked fears about the impact a second Trump term would have on the Supreme Court. In an interview with BET News taped on Tuesday, Biden warned that two more justices would likely retire in the next four years. "Just imagine if he has two more appointments on that, what that means, forever," Biden said in excerpts released by the network.

Conservatives enjoy a 6-3 majority on the court. Trump appointed three justices to it: Neil Gorsuch, Brett Kavanagh and Amy Coney Barrett — cementing the conservative majority on the bench.

At a star-studded fundraiser in Los Angeles on June 15, Biden referred to a recent report about Justice Alito, whose wife raised an upside-down U.S. flag outside their home after some Trump supporters carried upside-down flags at the Jan. 6 riot at the Capitol.

“The idea that if he (Trump) is reelected, he can appoint two more, flying flags upside down…” Biden said, adding that it would be "one of the scariest parts" of a second Trump term. He also told a campaign rally in May that he would name "progressive judges" to fill vacancies.

In 2021, soon after he was inaugurated, Biden set up a presidential commission on the Supreme Court, keeping a campaign promise he made when repeatedly pressed on whether he would expand the Supreme Court to pack it with justices more aligned with his worldview. Candidate Biden said he opposed expanding the court but said he favored the kind of bipartisan commission that the White House set up.

In December of that year, the panel – comprising legal éminence grise – issued a report that said Congress has the power to enlarge the court, but the panel took no position on doing so. On term limits, it appeared to suggest that a constitutional amendment was likely necessary, and pointed to the practical difficulties of implementing term limits at the same time that there are sitting justices with life terms on the court.