President Joe Biden's Supreme Court reform plan is a good first step — but Congress must act to curb the court's power in order to better serve democracy, legal experts told Salon.
In a Washington Post op-ed Monday, Biden called for a three-prong reform plan including a constitutional amendment to ensure former presidents are not immune for crimes committed while in office.
Biden also called for term limits, with a president appointing a justice every two years to serve 18 years on the Supreme Court.
And the president called for a binding code of conduct, slamming the current voluntary code as "weak and self-enforced."
The move comes two and a half years after Biden's 2021 Presidential Commission on the Supreme Court of the United States released its 294-page report that analyzed the contemporary public debate for and against Supreme Court reform.
"It's long overdue that he's calling for reform," Fordham University School of Law Julie Suk said.
Harvard Law School professor Ryan Doerfler said Biden has been a "'pretty committed opponent of court reform for most of his presidency."
"To see him come around on the basic issue and importance of reform is an important indicator of how far this cause has come," Doerfler said. "It's a real win for the reform movement just showing how much success they've had and how much political pressure they've had."
Doerfler and Suk both called the proposals "modest" and not the limit of potential reform.
Suk, who provided testimony to the commission, said that it's highly unlikely that the current Congress would pass Biden's reforms. But, she said, "as a matter of politics, I think it is important for such proposals to be out there, because it draws attention to the criticism of the court, which I think perhaps needs to be a little bit louder and more mainstream than it has been."
Biden's op-ed doesn't exactly say how the U.S. could pass term limits for Supreme Court justices. Suk said constitutional law scholars disagree about whether Congress itself could pass term limits without amending the Constitution.
"The Constitution says that judges hold their offices during good behavior, and it's long been understood that that means that the judge gets to keep their position for as long as they want, unless, of course, they get impeached," Suk said.
She said a constitutional amendment would be the "surest" way to impose term limits, and re-write the good behavior clause, going forward.
Suk said in almost all supreme or constitutional courts in other countries, terms are limited to 10 to 12 years.
Biden cited the 2012 commission report, which has a chapter on term limits that discusses a judge rotating to another judicial office after 18 years is up.
Suk said calls for term limits get more bipartisan support, and that Biden's proposal is "more moderate" than liberals and Democrats who have called to expand the court.
Doerfler said he's heartened by Senate draft legislation to implement term limits through statute — even though Congress' power to do is considered "somewhat controversial."
"I think it's very encouraging to see Congress embrace that constitutional power as the basis even for this comparatively modest reform," he said. "Because I think becoming comfortable with controlling the courts and courts more generally, and controlling the courts' jurisdiction, is really critical to implementing a broader and more impactful set of reforms."
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Meanwhile, New York University School of Law professor Jon Sprigman said Biden has "misdiagnosed the problem."
"The problem is not that the Supreme Court is too conservative — although it is," Sprigman said. "The problem is that the Supreme Court is too powerful. And it's not just the Supreme Court, it's federal courts generally. They have way too much power in a democracy."
Sprigman, whose research into constitutional change is footnoted in the commission's report, argues that the Constitution is ill-equipped to handle many modern public policy questions — including complex healthcare reform.
"They're interpreting a Constitution that's old and terse and vague and does not give direct answers on many questions that they rule," Sprigman said. "That means their rulings, while cloaked in the language of law, are more about reinforcing their own political preferences."
He added: "Judges are acculturated into a condition where the Constitution has something to say about everything. It rarely has anything to say about modern problems."
Sprigman said that's why the GOP has worked for 25 years to "capture the federal judiciary" and deploy it as a political weapon.
He said criticism of the Supreme Court stems from its founding, when critics warned it would become glutted with power without effective controls on it.
"Many years later, their predictions are coming true," Sprigman said.
Doerfler said controversial court decisions have often led to reform — including the 1857 Dred Scott decision that barred citizenship for enslaved and formerly enslaved people.
"It's during sort of acute moments of political crisis for the court that calls for court reform become especially loud," Doerfler said.
In recent years, the Supreme Court's favorability ratings have dropped. Democrats have slammed court rulings striking down long-standing precedents — such as the Dobbs case overturning Roe V. Wade — and other rulings, such as the Trump v. United States decision that ensures broad immunity for certain presidential acts.
"The political viability for this sort of institutional change is relatively rare, and so it's important to take advantage of it," Doerfler said. "We as a society are having this serious reflection on our institutional arrangements. And to satisfy ourselves with something like term limits, I would think would be a massive lost opportunity."
Doerfler said the prospect of Supreme Court reform has picked up after the passing of late Justice Ruth Bader Ginsburg, and intensified after the Dobbs decision as well as the Bruen decision enhancing Second Amendment Rights.
He said Supreme Court reform gained traction two years ago in midterm elections and the court appeared to moderate for a time — but "that sort of modesty really seems to have gone away" in the court's more "aggressive" 2024 term.
"The immunity decision is one that I think immediately for President Biden, seemingly provoked some sort of response," Doerfler said. "But also, the random series of decisions the court made around the administrative state."
He added: "The failure of sort of any sort of new push for court reform in response to Dobbs I think has left us with a relatively emboldened court. And I think some of those decisions have, in turn, placed pressure on President Biden to finally come around on this."
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Sprigman argued that beyond Biden's plan, the president and Congress must work together to limit the power and jurisdiction of the courts.
"Congress is in the drivers seat if they just put their hands on the wheel," he said.
Sprigman said that Congress controls the jurisdiction of lower courts, and that Congress can declare a federal question out of reach of the state courts. He also argued Congress has the constitutional power to make exceptions to the Supreme Court's jurisdiction over cases that get appealed from lower courts— with such appellate cases representing a big chunk of their workload.
He pointed out that Congress can, and has, protected bills from judicial scrutiny by passing language that prevents courts from reviewing them for constitutionality. Sprigman pointed to a 2023 debt ceiling deal that stripped West Virginia Democratic Sen. Joe Manchin's pipeline project from judicial review.
"This is a political decision: the political branches are deciding, the court should bow out," Sprigman said.
Doerfler said he expects to see members of Congress introduce bills in coming weeks and months that would tackle issues such as the Supreme Court's jurisdiction over appellate cases.
"I believe there are discussions ongoing from various legislators, or among various legislators about how to limit the Court's authority or just push back against this sort of like incredible judicial overreach," Doerfler said.
Doerfler said that other potential reforms include a super majority requirement: "If the Supreme Court wants to declare a federal statute unconstitutional, it has to do so by super majority, rather than a simple five, four majority."
He called expanding the court to add four justices a "necessary prerequisite to limiting the Court's authority."
"Just in the sense that by expanding the court, adding additional justices will lessen the likelihood of judicial pushback or judicial obstruction of those disempowering reforms," Doerfler said.
On the ethics code, Sprigman said it's a "great idea" but also not a solution to the more pressing issue of the court's power.
Justice Elena Kagan at a recent judicial conference called for an enforceable Supreme Court ethics code.
"One of the weird effects of having a binding ethics code is that the essentially anti-democratic essence of what the Supreme Court is and does is reinforced," Sprigman said. "The Supreme Court is depriving us ethically now of democratic choice."
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