The announcement would mark a sea change for Biden, a former chairman of the Senate Judiciary Committee who has long resisted calls to overhaul the high court. The potential changes come as his supporters have grown angry over recent ethics scandals involving Justice Clarence Thomas and decisions by the court’s new majority that have upended legal precedents on issues including abortion and federal rulemaking powers.
Biden gave a preview of the shift on Saturday in a Zoom call with the Congressional Progressive Caucus.
“I need your help with the Supreme Court, because I’m going to come out — I don’t want to announce it prematurely — but I’m going to present a major initiative to limit the court. … I’ve been working with constitutional law scholars for the last three months, and I need some help,” Biden said, according to a transcript of the call obtained by The Washington Post.
Term limits and an ethics code would be subject to congressional approval, which would have a long shot in the Republican-controlled House and a slim Democratic majority in the Senate. Under current rules, approval in the Senate would require 60 votes. A constitutional amendment would require additional hurdles, including two-thirds support from both chambers, or by a convention of two-thirds of the states, followed by approval by three-quarters of the state legislatures.
Details of Biden’s policy considerations have not been released. A White House spokesman declined to comment.
Shortly after The Post published this story, former President Donald Trump criticized the move on Truth Social: “The Democrats are attempting to interfere in the Presidential election and destroy our justice system by attacking their political opponent, M.E., and our honorable Supreme Court,” he wrote. “We must fight for our fair and independent courts and protect our country.”
Biden’s private comments about his plans for the Supreme Court came more than two weeks after his shaky performance in a June 27 debate with Donald Trump, prompting calls from some Democrats to ditch him as the party’s presidential nominee. Among those who have rallied to his side are many liberals who strongly support calls for court reform.
Four days after that debate, the Supreme Court ruled that Trump was immune from prosecution for official acts during his first term. Less than an hour later, Biden called Laurence Tribe, a constitutional law professor at Harvard Law School, to discuss the ruling and the arguments for and against reforming the court.
“Today’s decision continues the court’s assault over the past several years on a wide range of long-standing legal principles in our country, from eroding voting and civil rights to denying a woman’s right to choose, to today’s decision undermining the rule of law in this country,” Biden said in public remarks later that day.
The following week, Biden called Tribe again, and the two discussed an op-ed he had written in The Guardian supporting Supreme Court reforms. Among the options they discussed: term limits, an enforceable ethics code and amending the Constitution to address presidential immunity.
Tribe confirmed he had spoken to Biden, but declined to comment on the conversation.
During the 2020 presidential race, Biden rebuffed calls from liberals to expand the court, but he promised to create a commission to study possible changes. He made good on that promise after he was elected, and the commission issued a 294-page report to the president. Biden has done nothing with the commission’s report since it was approved in December 2021.
The Supreme Court’s approval ratings have plummeted in recent years and Biden is now trying to revive his flagging presidential campaign after the politically disastrous debate.
Since he was elected, the Supreme Court has shifted sharply to the right, Roe v. Wade, end affirmative action in college admissions, weaken the power of federal agencies by overturning a 40-year-old ruling, and scrap Biden’s student loan forgiveness program. Biden condemned the court’s recent ruling on presidential immunity, arguing on July 1 that it should motivate Americans to vote for his re-election.
“All of us are equal before the law. No one — no one is above the law, not even the president of the United States,” Biden said in a speech at the White House. “With today’s Supreme Court decision on presidential immunity, that has fundamentally changed.”
Eight Democratic senators have co-sponsored a bill that would establish 18-year terms for Supreme Court justices, with a new justice appointed every two years. The nine most recently appointed justices would sit on appellate cases, while others could hear original cases or serve as substitutes if one of the most recent nine has a conflict or otherwise cannot hear a case.
The legislation was introduced by Sen. Sheldon Whitehouse (D-R.I.), but is co-sponsored by several Democrats: Cory Booker (N.J.), Richard Blumenthal (Conn.), Alex Padilla (Calif.), Jeff Merkley (Ore.), Peter Welch (Vt.), Brian Schatz (Hawaii) and Kirsten Gillibrand (N.Y.).
Democrats have proposed other legislation to address ethical concerns about the high court, including a bill from Sen. Elizabeth Warren (D-Mass.) and Rep. Pramila Jayapal (D-Wash.) that would cap gifts justices can receive, require the court to adhere to a code of conduct for judges and require justices to provide written recusal decisions upon request from litigants, among other changes.
Ann E. Marimow contributed to this report.