Biden’s plan to reform the Supreme Court is already ‘dead on arrival’

Citing “recent ethics scandals” among the court’s justices and the court’s recent decisions overturning “long-established legal precedents protecting fundamental rights,” Biden wrote that these reforms are necessary to “restore trust and accountability” in both the President and the Supreme Court.

The Court has been a source of frustration for Democrats, with the conservative-led court handing former President Donald Trump and his allies victory after victory — culminating in a decision that ruled sitting presidents are granted presumptive immunity from prosecution.

That ruling snarled the various criminal cases against Trump, who was convicted of fraud in New York and faces allegations of mishandling classified documents and conspiring to overturn the 2020 election.

The Supreme Court’s two arch-conservative justices, Clarence Thomas and Samuel Alito, have also been tied up in scandals. Thomas took lavish gifts and vacations from a GOP mega-donor without disclosing them and his wife communicated to Trump aides before the Capitol riot. Meanwhile, a flag bearing symbols linked to pro-Trump movements flew over Alito’s house around the time of the riot; he’s since blamed his wife.

Despite the push from Biden for changes to the court, Johnson threw cold water on the idea immediately.

“President Biden’s proposal to radically overhaul the U.S. Supreme Court would tilt the balance of power and erode not only the rule of law, but the American people’s faith in our system of justice,” Johnson wrote on X on Monday.

He continued: “It is telling that Democrats want to change the system that has guided our nation since its founding simply because they disagree with some of the Court’s recent decisions. This dangerous gambit of the Biden-Harris Administration is dead on arrival in the House.”

Amendment on presidential immunity

Biden’s plan includes adding a “No One is Above the Law” amendment to the Constitution, which would dictate that no president has “immunity from federal criminal indictment, trial, conviction, or sentencing by virtue of previously serving as President,” according to the press release.

But amending the constitution isn’t easy; it’s only been done 27 times, the last time of which was in 1992.

There are a few ways to propose a change to the constitution that the Founding Fathers outlined. The first requires two-thirds support from members of both the House and Senate — a feat that would be near impossible to accomplish with Republicans controlling the House.

The GOP has largely supported the Supreme Court’s conservative majority, and has rebuked Democrats’ attempts to limit its power.

The second option requires two-thirds of state legislatures to call a convention to propose a change to the constitution.

And that’s just to get the amendment proposed — in order to get it ratified, three-fourths of state legislatures must support the amendment.

This would also be a tough task with 23 states controlled by Republican trifectas (meaning the GOP runs both state legislatures and the governor’s office) and 10 states having divided governments; only 17 states are controlled by Democratic trifectas, according to Ballotpedia.

Term limits and a new code of conduct

Biden’s plan for the Supreme Court includes term limits that would mean a new justice was chosen every two years.

In an op-ed for The Washington Post, Biden wrote that, “Term limits would help ensure that the court’s membership changes with some regularity. That would make timing for court nominations more predictable and less arbitrary. It would reduce the chance that any single presidency radically alters the makeup of the court for generations to come.”

Biden also argued in The Post that “the court’s current voluntary ethics code is weak and self-enforced,” and that a binding, enforceable code of conduct should require justices “to disclose gifts, refrain from public political activity and recuse themselves from cases in which they or their spouses have financial or other conflicts of interest.”

The court’s current ethics code, implemented in November, is not binding and does not contain any enforcement mechanism.

Proposing both term limits and a stricter ethics code for justices would require the Republican-controlled House to not only allow a floor vote on the issue, but also to then pass it. Even if the House approved the bill, Republicans in the Senate could filibuster the bill, stopping it in its tracks.

Democrats would need to throw out the filibuster — something they already lack the votes to do — to even bring the legislation to a vote.

With powerful Republicans like Johnson already pushing back, getting all three of Biden’s proposals implemented in the Supreme Court looks like a losing battle. But Biden’s plan has already gotten support from Vice President and presumptive nominee Kamala Harris, all but guaranteeing that Democrats will use it on the campaign trail as a way to contrast against Trump.