Biden wants U.S. Supreme Court reforms. Here's what scholars say about it

President Joe Biden's proposal Monday for term limits and an enforceable code of ethics for U.S. Supreme Court justices is necessary to improve the high court's credibility with many Americans, but unlikely to pass a closely divided Congress less than 100 days before the presidential election, according to constitutional law and political science experts.

Biden called for the most sweeping changes to the court in a generation, arguing that no one, including the justices — who have lifetime appointments and face little ethical oversight — are "above the law." He introduced his plan in a Washington Post opinion piece, before detailing it further later Monday in a speech at the LBJ Presidential Library in Austin, Texas, where he marked the 60th anniversary of the Civil Rights Act.

"Term limits will help ensure that the court's membership changes with some regularity," Biden said during the address. "That would make timing for the court's nomination more predictable and less arbitrary and reduce the chance that any single president imposes undue influence for generations to come."

Vice President Kamala Harris, the likely Democratic presidential nominee and a former prosecutor, expressed support for the proposals. But former President Donald Trump, the GOP presidential ticket nominee, decried the plan as election interference. Republican House Speaker Mike Johnson (R-La.) called the proposal a "dangerous gambit" that would be "dead on arrival in the House."

Eric M. Freedman, a professor at Maurice A. Deane School of Law at Hofstra University with expertise in constitutional law and history, said the reputation of the Supreme Court itself lags well behind some of the decisions it makes. 

"That is why the Court has, until recently, been extremely prudent about drawing down on its accumulated capital of public credibility," Freedman said. "The members have generally understood that an overall reputation for being law-driven that took a long time to create in the first place will take a long time to restore if lost. So whether the reputation of the Court would improve in the wake of any enactment of the proposals — which would not take full effect for many decades to come — is something that won’t be known until late in this century."

Biden is asking Congress to pass legislation creating a system in which justices in the nation's top court serve 18 years, allowing the sitting president an opportunity to appoint a replacement every two years. The three justices with the most tenure on the court are conservatives.

House and Senate lawmakers, Biden proposed, also should establish a code of ethics requiring justices to disclose gifts, recuse themselves from cases in which they or their spouses have financial or other conflicts of interest and avoid overt public political activities.  Other federal judges already have to follow an enforceable conduct code.  

The push for ethics reforms comes after revelations that conservative Justice Clarence Thomas accepted expensive trips from a Republican megadonor and that the staff of Justice Sonia Sotomayor, whom President Barack Obama appointed, urged groups that hosted the Bronx-borne justice to buy copies of her memoir or children’s books. 

"An ethics code is not about trying to limit their ability to write judgment," said Tiffany Graham, an associate professor and associate dean of diversity and inclusion at Touro Law Center. "[An] ethics code is just about ensuring that these individuals do not treat the Supreme Court like the keys to the kingdom; like access to someone else's piggy bank."

Biden on Monday also urged House and Senate lawmakers to ratify a constitutional amendment limiting presidential immunity. In July, the Supreme Court, which has a 6-3 conservative majority, ruled that presidents cannot be prosecuted for "official acts" during their time in office, a decision stemming from a case Trump filed. Congress last ratified an amendment to the Constitution 32 years ago.

Christopher Malone, a political science professor at Farmingdale State College, said Biden's proposals have little to no chance of passing in the less than six months before he leaves office.

"I don't think the Republican Congress is in any mood to pass any of Biden's proposals, and certainly not this one, because it's seen, from the Republican perspective, as a partisan attack on a conservative court," Malone said. "The impetus for this is clearly that a conservative majority is issuing opinions that a Democratic president and a liberal-leaning Democratic Party don't agree with."

Michael Nelson, a professor of political science at Pennsylvania State University, said Biden's proposals have the opportunity to energize Democrats, who were enraged when the court ended the constitutional right to abortion in 2022 by overturning the 1973 decision Roe v. Wade.

"There is a greater and greater sense among Democrats that they have to do something to rein in the court and just kind of letting things go as they have been . . . is not going to be tenable over the long term," he said.

And while Nelson is pessimistic that Biden's proposals are achievable in the near future — the laws, if challenged, potentially could be ruled unconstitutional by the Supreme Court itself — change, he said, may be possible in the years to come.

 "But it's going to be a really, really long road to get there," the professor added.  

Graham, though, said reform is undoubtedly necessary, because when the integrity of the court is questioned, "it puts stress on our willingness to ultimately listen to them. We will find ourselves in a position of kind of picking and choosing what our own rules are going to be, and that's not a healthy place for a democracy to be in."

With The Associated Press