Biden Proposes Major SCOTUS Reforms, Including Ending Lifetime Appointments & Enforcing Ethics Code

AMY GOODMAN: President Biden has laid out his plans to reform the U.S. Supreme Court, calling for 18-year term limits, an enforceable code of ethics and an end to presidential immunity. Biden’s plan comes a month after the Supreme Court granted former President Donald Trump broad immunity from prosecution for crimes committed in office. Biden stopped short of calling for expanding the court. He outlined his plan Monday at the LBJ Presidential Library in Austin, Texas, where he commemorated the 60th anniversary of the Civil Rights Act.

PRESIDENT JOE BIDEN: I’m calling for a constitutional amendment, called No One Is Above the Law Amendment. It holds — I mean this sincerely. It holds that there’s no immunity for crimes a former president committed while in office. I share our founders’ belief that the president must answer to the law, that the president is accountable for the exercise of the great power of the presidency. We’re a nation of laws, not kings and dictators. …

The second thing I’m asking for is we’ve had term limits for presidents of the United States for nearly 75 years, after the Truman administration. And I believe we should have term limits for the Supreme Court justices in the United dates, as well. …

Third, I’m calling for a binding code of conduct for the Supreme Court.

AMY GOODMAN: That was President Biden speaking Monday. Republican House Speaker Mike Johnson responded by accusing Biden of attempting to radically overhaul the Supreme Court. The House speaker said the proposals will be dead on arrival in the House.

We’re joined right now in Washington, D.C., by Jennifer Ahearn, senior counsel in the Brennan Center’s Judiciary Program.

Welcome to Democracy Now!, Jennifer. Why don’t you start out by assessing President Biden’s proposals that he made yesterday in Texas as he celebrated the Civil Rights Act, and also how much chance they have of getting passed, now that we hear what the House speaker has to say?

JENNIFER AHEARN: Good morning, Amy. Thank you so much for having us. It’s great to join you.

I would say this is a pretty big deal for those of us who care about the Supreme Court. President Biden, I think, is somebody who sees himself as an institutionalist and a champion of the importance of the rule of law and the role of the Supreme Court in upholding the rule of law. And so, if he believes that these kinds of changes are necessary, I think the public already believes this. And so, that he has come along and is lending his voice to this call is, I think, critically important for this moving forward.

I, you know, understand Speaker Johnson’s view, and I understand that this — that means this is perhaps a longer-term project that we are engaged in. And I think, politically, we have a ways to go before the views of the people and the commonsense reforms of these kinds can actually make their way through the Washington process. But I think this is a really important moment in that long process. And we’re just really grateful that the president has chosen this as one of the things to speak out on in his last hundred days in office.

JUAN GONZÁLEZ: Jennifer, the commission that President Biden established on Supreme Court reform submitted its report in late 2021. That’s almost three years ago. Why did you think it took him so long to actually pursue some recommendations?

JENNIFER AHEARN: Well, I mean, actually, right, he specifically asked the commission not to give him recommendations, so it really didn’t give him even that list, which I think really goes to show sort of how much movement there has been in his thinking on this in the last few years, right? That he didn’t even want to consider recommendations in those early years of his administration. And so, I think that that is a sign of how far his thinking has come and how far, you know, more broadly, the public’s thinking has come on this issue. And so, I think that that really is why, I think, we are where we are today.

JUAN GONZÁLEZ: And what about this proposed 18-year term limit? How would that affect the court’s stability and continuity, if it were enacted?

JENNIFER AHEARN: I think it would put the court on a more sustainable path in terms of how it relates to the public and to public support for and views of the court’s legitimacy. It’s worth remembering that, really, the Supreme Court has nothing other than its legitimacy, right? There’s no — it has no army. It has no power of the purse. You know, in our constitutional system, the court’s legitimacy and the respect that we, as a country, have for it is really all it has. And so, something like term limits, that would bring the court more in line in a very long-term, sustainable kind of way with where the public is and where — and with the issues of the day, I think, is really important to the court’s overall legitimacy and putting it on that path.

AMY GOODMAN: So, Jennifer, if you could more specifically address the points that Biden is making? What would an 18-year term look like? And if there was an 18-year term, who would be off the court right now?

JENNIFER AHEARN: So, the longest-serving members of the court at the moment are Justice Thomas, Justice Roberts and Justice Alito. So, depending on exactly how you implement a reform like this — and there are lots of different ways to do it — you would probably see those folks rotating off first on the list.

You know, I would also say, in general, if you look at, really, big picture, what would this do, remember that the president, obviously, is the one who nominates Supreme Court justices, and so you would see the — whatever swings there are on the court, in terms of partisan who — the partisan who appointed the justice, that would more closely track how presidential elections have gone over time. And that’s really not what we see on the court right now. We see the appointees from President Donald Trump having, you know, a huge — having appointed three Supreme Court nominees, which is more than any other president. So, you would see some of that smoothing out over time.

The New York Times also had a graphic this morning that showed that if term limits had been in effect in the past, we would see a 6-3 liberal majority at the moment as opposed to the 6-3 conservative majority that we currently see. So, that’s sort of how you might want to think of it generally. And, obviously, the specifics depend a little bit on how you actually put this into place.

AMY GOODMAN: Well, Jennifer Ahearn, we want thank you for being with us from the Brennan Center, speaking to us from Washington, D.C.

In July, Democratic Congressmember Alexandria Ocasio-Cortez filed articles of impeachment against Justices Clarence Thomas and Samuel Alito over alleged ethics violations. The news outlet ProPublica revealed Thomas failed to disclose millions of dollars of gifts from billionaires — in one case, accepting luxury trips virtually every year from right-wing megadonor Harlan Crow — without disclosing them. The Supreme Court justices have since agreed to a code of conduct. On Thursday, Justice Elena Kagan became the first member of the Supreme Court to make a public statement in support of adding an enforcement mechanism to the new ethics code. Kagan spoke at an annual judicial conference held by the 9th Circuit.

JUSTICE ELENA KAGAN: I think that the thing that can be criticized is, you know, rules usually have enforcement mechanisms attached to them. And this one, this set of rules, does not. … I think, you know, both in terms of enforcing the rules against people who have violated them, but also in protecting people who haven’t violated them, I think a system like that would make sense.

AMY GOODMAN: For more on this, we’re joined by Andy Kroll, investigative reporter for ProPublica, part of the team who just won the Pulitzer Prize for Public Service Journalism for its investigation into politically connected billionaires lavishing luxurious gifts on Supreme Court Justice Clarence Thomas and Samuel Alito, also the fact that they support organizations that have cases before the Supreme Court. Your response to President Biden and to Justice Kagan?

ANDY KROLL: I think the statement from President Biden, and especially the comments from Justice Kagan, show how much the conversation around Supreme Court reform has changed in just the last 12 to 18 months. I mean, thinking back to what Jennifer from the Brennan Center said just a moment ago, the difference between when the presidential commission did its work and put forward its not-recommendations back in 2021 to where we stand today is pretty stark.

The fact that President Biden is using the bully pulpit, as a lame-duck president, to push for these reforms, to really drive this conversation, and then the fact that a sitting justice, in Elena Kagan, is saying this new code of conduct, a code of conduct that was issued in response to ProPublica’s reporting, is not enough, that it does not have enforcement, it does not have teeth, in the way that the code of conduct for every other federal judge does, I think, really shows how far this conversation has come in just a year. Obviously, it has a ways to go, given the politics of Congress right now and what we heard Speaker Johnson say, but we’ve never had this kind of conversation about Supreme Court reform in modern history, so that alone is a notable thing. It just shows the impact, one, of investigative journalism, but also the impact of this decline in public trust for the U.S. Supreme Court.

AMY GOODMAN: Andy Kroll is an investigative reporter with ProPublica. We’re going to go to break, and when we come back, we’re going to look at his recent piece, “Inside Ziklag, the Secret Organization of Wealthy Christians Trying to Sway the Election and Change the Country.” Stay with us.