President Joe Biden published an op-ed in The Washington Post on Monday morning announcing his support for three long-awaited proposals to reform the Supreme Court. First, Biden calls for a constitutional amendment to make clear that the presidency does not confer immunity for criminal acts. The aptly titled “No One Is Above The Law Amendment” would set aside the Supreme Court’s decision in Trump v. United States to turn the Oval Office into a Get Out of Jail Free Card for its previous occupant.
Second, Biden says Supreme Court justices should be subject to term limits. Under the new system, each president would appoint a justice every two years who would spend 18 years in active service. This would ensure that the timing and tenure of high court appointments no longer depend on when any given justice happens to kick the bucket, without potentially running afoul of the Constitution’s de facto promise of life tenure to federal judges.
Third, Biden calls for Congress to pass a binding code of conduct for Supreme Court justices. This too would curb the Court’s outlier status, as all other federal judges are bound by existing ethical rules.
“Apply the law equally,” “don’t rule forever,” and “behave ethically” are very basic, commonsense reforms that basically everyone can get behind. As Biden writes in his op-ed, “these reforms are supported by a majority of Americans—as well as conservative and liberal constitutional scholars.” So, naturally, congressional Republicans are losing their minds about it.
In a statement, Speaker of the House Mike Johnson declared that these proposals would “radically overhaul” the Court and “erode the rule of law.” The one tiny problem with his argument is that, from the public’s vantage point, the Court has done a bang-up job eroding the rule of law all on its own: A whopping 70 percent of American adults believe justices put ideology over impartiality, according to polling conducted last month.
Johnson also claimed that Biden, Democratic presidential nominee Kamala Harris, and congressional Democrats would “soon resume” their efforts to “expand and pack the Court.” This ignores the fact that Biden’s plan did not mention Court expansion, that he has stubbornly never supported Court expansion, and that he isn’t starting now. It also ignores that Republicans have already packed the Court, using the 2016 election as an excuse to keep the late Justice Antonin Scalia’s seat open for over a year until they could fill it with a Republican—a stunt that effectively reduced the Court’s size to eight members. In 2020, after the death of a liberal justice, Republicans pulled off a speed-run confirmation of another Republican while another presidential election was taking place.
Lindsey Graham, the Republican ranking member of the Senate Judiciary Committee, continued the Republican tradition of lying about Democrats in a way that makes them sound cooler than they are. In an interview that aired Sunday night, Graham echoed the claim that the Biden administration “wants to destroy the Court,” alleging that its proposals are not intended to make the Court better, but only to make it more liberal.” If a gentle admonishment to government officials to avoid doing crimes would make the court more liberal, perhaps Graham should reevaluate the virtues of conservatism.
Revealingly, Johnson and Graham both failed to engage with Biden’s proposals on the merits. They didn’t say which crimes they think presidents should be able to commit without fear of prosecution and why. They didn’t say why they think federal judges should have power over Americans for as long as they live. And they didn’t say why they think justices should be immune from the ethics rules that apply to literally all other federal judges. They didn’t say these things because they can’t say them without looking foolish. Biden has offered up innocuous, broadly popular reforms to a crisis created by this out-of-control Court. The only “radical” course of action is not doing anything about it.
