Supreme Court reform is possible
Just not the way Biden’s trying to do it.
I wasn’t originally planning to write about President Biden’s Supreme Court reform proposal, not because I wasn’t interested in it — but because he didn’t seem to be.
Biden, after all, has spent his decades-long career dismissing calls to overhaul the court. Now that he’s changed his mind, he appears to have done so mostly as an afterthought — which is consistent with how he’s handled the issue through the years.
On the 2020 campaign trail, while many of his Democratic rivals raced to release proposals outlining court reform, Biden — who spent 32 years on the Senate Judiciary Committee, eight of them as chairman — remained firm in opposition. Consider his blunt answer on the topic during a New York Times editorial board interview:
NYT: Speaking of those other candidates, several of them have proposed major structural reforms to our government and to our democracy. These include abolishing the Electoral College, expanding the size of the Supreme Court, setting term limits for justices, abolishing the legislative filibuster. Which, if any of these, do you support?
Biden: None.
In October 2020, as liberal pressure on court reform rose after Amy Coney Barrett’s confirmation, Biden did what politicians always do when they don’t want to talk about something: he promised to appoint a commission. In April 2021, after taking office, Biden kept his word and created the Presidential Commission on the Supreme Court of the United States. But the 36-member panel was empowered only to produce an “account of the contemporary commentary and debate” about the Supreme Court, not to issue any recommendations.
Towards the end of 2021, the commission released its 288-page report, and Biden did what politicians always do when commissions release reports: he ignored it. That’s pretty much where the issue sat until two weeks ago, when Biden suddenly floated a court reform proposal on a Zoom with House progressives, seemingly in an attempt to retain their support for his floundering presidential campaign.
His campaign may be over, but the proposal survived, and Biden — now a lame-duck president — was left awkwardly championing an idea he long opposed in a speech in Austin on Monday.
Biden’s view of the court clearly has evolved: throughout the speech, he labeled the justices “extreme” and sought to link them to Project 2025, the Heritage Foundation platform that has become a cornerstone of the Democratic campaign against Trump. But his heart didn’t always seem in it on Monday. The speech had a valedictory feel to it, packed with almost as many tangents about his long career as attacks against the court.
How else can you tell Biden isn’t that invested in court reform? The substance of what he called for.
Biden outlined three reform proposals: a constitutional amendment overturning the court’s presidential immunity decision; an 18-year term limit for justices, and an enforceable ethics code for the court.
As has been pointed out ad nauseam, none of this will happen (at least not in this manner). A constitutional amendment requires approval from two-thirds of Congress and three-fourths of the states, which the immunity proposal will not receive. Strangely, Biden didn’t specify whether he is pushing for the term limits and code of conduct to be approved by a constitutional amendment or an act of Congress, a good sign that the proposal is more symbolic than substantial.
He also released the title of his proposed immunity amendment, the “No One Is Above the Law Amendment,” but not the text, putting lawmakers in the awkward position of being asked to comment on a proposal that they could not read. Speaking of lawmakers, the White House reportedly did not consult congressional Democrats — much less congressional Republicans — before Biden’s speech, as would normally be expected before introducing a major legislative proposal.
Again, none of this adds up to a serious push for court reform.
Perhaps that’s because such reform is impossible in our polarized era. And, yes, right now, in an election year, nothing on this topic is going to get passed — but no one made Biden wait this long. If this was an issue he cared about, he could have asked his commission to issue actual recommendations in 2021, and then — if any proposals were backed by its bipartisan members — tried to rally support behind them, using the conservative lawyers on the panel as frontmen. He could have consulted with Republican lawmakers who have expressed interest in the issue, and he could have done it while he had momentum from other bipartisan efforts on infrastructure, manufacturing, same-sex marriage, and electoral reform.
Any legislation that passes on this issue — certainly any constitutional amendment — will have to be bipartisan, which means any serious effort has to start there. And, interestingly, some conservatives have offered a starting point that the Biden White House — and most everyone else — seems to be ignoring.
In this case, the olive branch is coming from the most unexpected of sources: Leonard Leo, the president of the Federalist Society and godfather of the conservative legal movement, who has played a role in the confirmations of all six members of the Supreme Court’s Republican-appointed supermajority.
In a statement, Leo slammed Biden’s proposal as a Democratic “campaign to destroy a court that they disagree with.” But then he said something interesting:
If President Biden and the Democrats were truly serious about ethics reform, then they would ban all gifts and hospitality of any kind to any public official in any branch of government, starting with Congress, where the real corruption is. They would close all of the loopholes that allow Members to travel on private jets to fancy hotels and restaurants. With respect to judges, they would include the things where influence peddling is most present and dangerous—and that’s when the liberal Justices rub shoulders with influencers at places like law schools, bar associations, progressive think tanks and their conferences, and other groups and events funded by Left-wing billionaires, where they support real vested interests in the work of the Court.
Let me be clear: If Democrats want to adopt an across the board ethics ban for all branches, I am in favor of that: no jets, no meals, no speaking honorariums, no gifts for anyone from anyone for any reason in any branch, starting with Congress.
If the Democratic Party was actually interested in fostering a more accountable government, and not just scoring political points against a court they’ve butted heads with, they’d respond: you’re on.
Instead, Democrats mostly replied to Leo’s statement with online mockery. I reached out to the White House for a formal response last night, but have yet to hear back.
Packaging Supreme Court ethics reform with an ethics boost for other branches of government would probably be the clearest route to actually achieving anything on the issue. As in any bipartisan compromise, both sides would have to give something up: in a period of divided government, Democrats can’t expect to pass a package only targeting the branch they have beef with.
In this case, congressional Democrats might not even have to give up much. Many of the prohibitions Leo outlines already apply to members of Congress, who cannot receive meals or gifts larger than $50 and must pay the fair-market charter rate for any private jet travel. (Supreme Court justices can receive gifts of any amount, including flights on private planes.) Why not take take Leo up on it, and propose one big law, setting the same standards for justices and lawmakers (and message it as reining in both branches), as a basis for gathering bipartisan support?
To further sweeten the deal, and to ensure both branches are taking a hit (since, frankly, the gifts issue is already pretty regulated for lawmakers), a potential deal could also include another bipartisan ethics proposal that actually would change the status quo in Congress: a ban on lawmakers trading stocks. Such a bill passed a Senate committee with bipartisan support last week; the proposal, as written, would impact the legislative and executive branches. Under a Leonard Leo Across the Board Governmental Ethics Act, Supreme Court justices — who currently face no restrictions on their stock trading — could be written into the bill as well.
The problem, of course, is that although support for a congressional stock trading ban is bipartisan, the opposition is too. In fact, in the last Congress, it was then-Speaker Nancy Pelosi (D-CA) who was the main obstacle to the legislation. But if Pelosi and other Democrats want to regulate the Supreme Court, they might just have to give up their prized portfolios to do it. (Pelosi and her husband have bought almost $10 million worth of stocks this year.)
The Biden administration has been similarly disinterested in boosting ethics when it comes to its own branch. Earlier this year, Reps. James Comer (R-KY) and Katie Porter (D-CA) teamed up to introduce the Presidential Ethics Reform Act, which would require presidents and vice presidents to release their tax returns and to disclose foreign sources of income for them and their families, among other provisions. (Something in it for critics of Donald Trump and Hunter Biden, see?) According to Porter, she had lined up three Democratic co-sponsors for the measure — until the White House lobbied them to back out. Everyone loves to push ethics reform until it hurts the interests of your own branch (or family). But doing this in a serious way would require all three branches to take the plunge, together.
Interestingly, I also think there’s an angle here for Supreme Court term limits, another of Biden’s new proposals. In the recent past, Democrats have been the party that has most vocally advocated for SCOTUS term limits, while Republicans have been the party most identified with pushing for congressional term limits. (Again, this is aligned with everyone’s interests. Six of the nine Supreme Court justices were appointed by Republicans. 24 of the 30 longest-serving current House members are Democrats.) Republican Party platforms have endorsed congressional term limits for decades; it was also a promise of the GOP’s “Contract with America” in 1994 and Donald Trump’s “Contract with the American Voter” in 2016.
If term limits for either the judicial or legislative branch are to be implemented, it would likely have to be done in one fell swoop, in a manner that allows each party to fulfill one of their campaign promises. In the last 24 hours, Democrats have been emphasizing the popularity of Supreme Court term limits — but, notably, congressional term limits are even more popular. 67% of Americans back SCOTUS term limits, per an AP/NORC poll; 87% (!) of Americans support term limits for members of Congress, according to the Pew Research Center.
Just like for the Leonard Leo Ethics Act, Democrats even have an across-the-aisle partner waiting for them. Asked about Supreme Court term limits on Monday, Gov. Ron DeSantis (R-FL) responded: “If they’re willing to support term limits for members of Congress, that would be a trade that I would make.” Other Republicans, including Sen. Marco Rubio (R-FL), have also previously expressed openness to judicial term limits under that condition. Package the Leo-DeSantis Act together and you have yourself a deal.
Of course, there would still be roadblocks aplenty1 — but a constitutional amendment binding together ethics reform and term limits for the judicial and legislative branches is likely the only viable route forward for either proposal to gain bipartisan traction.
It would also be in line with previous changes to the U.S. political system, which are often take place under these sorts of swaps. The two most recent states added to the union, Alaska and Hawaii, were added together as a bipartisan compromise, since Democrats wanted one state and Republicans wanted the other.2 The last federal minimum wage increase, in 2007, was implemented as a sweetener to gain Democratic support for a package increasing Iraq war funding. Even the first ten amendments to the Constitution, the Bill of Rights, can essentially be understood as the product of a bipartisan deal, between the Federalists and Anti-Federalists.
Amending the Constitution would certainly be harder in our more polarized era — but it shouldn’t be considered impossible. As the scholars John Kowal and Wilfred Codrington have written, constitutional amendments tend to come in waves — waves that are hard to predict before they arrive. In 1904, the Washington Post editorialized that “our fundamental law is practically unamendable by peaceful and regular methods”; in the following 15 years, four constitutional amendments would be ratified, a sudden surge after a decades-long amendment dry spell not unlike the one we’re currently inhabiting.
It should also be noted that the last two constitutional amendments — the 26th, which lowered the voting age, and the 27th, addressing congressional salaries — both came as a result of efforts led by young people.3 Current, entrenched officeholders are unlikely to champion term limits or ethics proposals for obvious reasons — but perhaps a new generation of politicians will see it differently.
A recent survey found that just 5% of Americans under 40 “strongly agree” with the statement, “I trust the federal or national government of the United States,” a crisis of confidence that will need to be addressed eventually. This disapproval extends to all three branches of government, and comes from members of both parties: in the Harvard Youth Poll of 18-to-29-year-olds, majorities of both Democrats and Republicans expressed distrust towards the Supreme Court, president, and Congress. As a result, polling also shows that young Americans are the demographic most supportive of changes to the political system.
Skepticism that this will translate to the politicians who are elected from the younger generation would be well-founded — except for the fact that there are already some high-profile exemplars. In line with Trump’s populist “drain the swamp” message, the most vocal GOP supporters of government ethics proposals have been the newer generation of more MAGA-brand Republicans. Sen. Josh Hawley (R-MO), one of the youngest (and most Trump-aligned) members of the Senate, is the lead Republican sponsor of the congressional stock trading ban that advanced last week in committee; Comer, the top Republican on the executive branch ethics bill, is also a younger lawmaker firmly in Trump’s faction. Of course, DeSantis, who expressed openness to a bipartisan “trade” on term limits, is in this mold as well.
If Democrats were serious about ethics or term limits proposals, they would be approaching these Republican lawmakers as potential co-sponsors. (The immunity amendment, on the other hand, has no obvious bipartisan compromise attached to it.) Because the bar for ratification is so high, constitutional amendments are only possible if done through these bipartisan channels. Another modern amendment, the 25th (addressing presidential disability), was written by a Democratic senator, Birch Bayh, who used a Republican proposal as his basis and then courted support across the aisle.
In this case, a Supreme Court ethics bill with Republican support — the Supreme Court Code of Conduct Act, co-sponsored by Sens. Angus King (I-ME) and Lisa Murkowski (R-AK) — was introduced a year ago.4 But there is no indication that Biden consulted Murkowski before debuting his judicial ethics push; similarly, the Democratic-controlled Senate has declined to act on the King/Murkowksi bill and instead moved forward with a farther-reaching, but party-line (thus, doomed) measure.
Just as Bayh, the only modern American to author two successful constitutional amendments, operated through leadership of a subcommittee that was a bipartisan incubator for amendments, Biden had the opportunity to empower a bipartisan panel that could have recommended ideas for government reform proposals with cross-party support. Instead, when Biden did appoint a panel with conservative and liberal legal experts, he didn’t ask them for specific recommendations and did nothing in response to their report, only reviving the topic when he was in desperate need of political backing.
If the Supreme Court and other branches of government ever are reformed, it won’t be done as a desperate campaign push, and it probably will require a multi-prong effort that doesn’t single out one branch specifically. Oh, and — based on recent history — it will also probably need to be championed by someone decades Biden’s junior.
More news to know
North Carolina Gov. Roy Cooper has withdrawn himself from consideration to be Kamala Harris’ running mate. “This just wasn’t the right time for North Carolina and for me to potentially be on a national ticket,” he said in a statement.
According to The Associated Press, Cooper partially removed himself out of concern about a state provision that makes the lieutenant governor — Mark Robinson, a hard-right Republican — “acting governor” when Cooper travels out of state. Meanwhile, NBC News reported that Cooper’s decision was due to a desire to run for Senate in 2026.
Per Axios, Michigan Sen. Gary Peters has emerged as a “dark horse” candidate for the VP slot. Arizona Sen. Mark Kelly, Pennsylvania Gov. Josh Shapiro, and Minnesota Gov. Tim Walz reportedly remain the favorites.
Republican vice presidential candidate J.D. Vance privately told donors that the Biden-Harris swap was a “political sucker punch” for the Trump ticket. “Whatever we might have to say, Kamala is a lot younger,” he acknowledged. “And Kamala Harris is obviously not struggling in the same ways that Joe Biden did.”
Silicon Valley’s famed “PayPal Mafia” is splitting over the 2024 election, as Elon Musk, David Sacks, and Peter Thiel line up behind Trump, while Reid Hoffman raises funds for Harris. Per The Wall Street Journal, Musk’s opposition to Biden can “be traced in part” to a 2021 snub.
Russia is using social media to try to boost Trump, while Iran is doing the same in an attempt to hurt him, the intelligence community said Monday. China is not currently attempting to influence the outcome of the presidential race.
Texas Rep. Lloyd Doggett was the first congressional Democrat to call on Biden to step aside. But they were all smiles yesterday as Doggett welcomed Biden to his Austin district.
The day ahead
All times Eastern.
Biden: The president will speak on the phone with President Luiz Inácio Lula da Silva of Brazil at 2:30 p.m.
Harris: The VP will headline a campaign event in Atlanta at 7 p.m. Megan Thee Stallion is set to perform.
Emhoff: The second gentleman will speak at a campaign event in Nantucket, Massachusetts.
Senate: The upper chamber will hold a procedural vote to advance a bipartisan package combining the Kids Online Safety Act and the Children and Teens’ Online Privacy Protection Act, which would be the first major tech regulations to pass Congress in decades. The Senate will also vote to confirm a Biden district judge nominee.
House: The lower chamber is out until September 9.
Committees: The Senate Judiciary and Homeland Security and Governmental Affairs Committees will hold a joint hearing at 10 a.m. on the security failures leading to the assassination attempt against former President Trump. Acting Secret Service Director Ronald Rowe and FBI Deputy Director Paul Abbate will testify.
Supreme Court: The justices are out until October.
Not least of which would be the possibility that neither of the parties expressing interest in these proposals would actually support them.
Ironically, given their current political compositions, it was the Republicans who pushed for Hawaii and the Democrats who wanted Alaska. Funny how things work out.
The youth role in the voting-age amendment speaks for itself. The 27th Amendment, meanwhile, was the result of a college student’s term paper.
The bill has been rendered somewhat redundant by the court’s recent issuance of a code of ethics, although the measure also called for an official who would oversee ethics complaints against the justices, which still does not exist.
Great read and a lot of information to think about! Thanks!!
Have you thought about becoming a political consultant? Woah! Big leap in analysis from when I first started reading your column when you were a teenager. Kinda mind blowing.