Joe Biden knows better than anyone that a reform of the Supreme Court has no chance of being adopted before he leaves the president's office on January 20, 2025, nor of seeing the light of day for a long time to come, should he be replaced in the White House by Donald Trump. Presenting his ideas in Austin, Texas, on Monday, July 29, in the library of a great reformist president, Lyndon B. Johnson, to mark the 60th anniversary of the enactment of the civil rights laws that put an end to racial discrimination in the US, the Democratic president made history.
The president pulled no punches as he explained the legitimacy of his proposed reform to the Washington Post, in an op-ed published that very morning. "Extremism is undermining the public confidence in the court's decisions," he thundered. The most important change concerns the lifetime tenure of these judges, designed to protect them from any form of political influence. Biden envisages an 18-year term and the replacement every two years of one of the nine justices who make up the highest judicial body in the US. The change would aim to "reduce the chance that any single presidency radically alters the makeup of the court for generations to come."
This framework is based on one observation: For the same number of terms since 2000, Democratic presidents have appointed three judges, compared with five for their Republican counterparts. Rising life expectancy is also having an effect. Advocates of this reform point out that, before 1970, judges stayed on the bench for an average of 16 years, whereas now that figure has risen to 28 years.
Biden, who rightly prides himself on having " overseen more Supreme Court nominations as senator, vice president and president than anyone living today," has until now been reluctant to tackle the issue. The more popular idea in Democratic ranks has been to increase the number of justices to dilute conservative dominance. The Court's recent decisions have clearly changed his mind.
The latest concerns the broad presidential immunity recognized by conservative judges in legal proceedings against Trump. To guarantee, in his view, respect for the principle that "no one is above the law," the Democrat is arguing for the adoption of a constitutional amendment ruling out " immunity for crimes a former president committed while in office."
He is also promoting a binding code of ethics to be adopted, to avoid the controversies that have recently affected the institution: the discovery of largesse enjoyed by a conservative judge, Clarence Thomas, from billionaires, and obvious conflicts of interest over the immunity claimed by Trump to defeat the proceedings brought against him for his role in contesting the results of the 2020 presidential election. The wives of two conservative judges, that of the same Thomas and also Samuel Alito, have taken public stances to defend the "stolen" election conspiracy theory.
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