"They have way too much power": Experts say "modest" Biden Supreme Court plan needs to go further

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.

Boston University School of Law professor Robert Tsai said it's the first time that the commission's report has received public backing from Biden as well as his preferred pick for the next president: Vice President Kamala Harris.

Tsai and other legal experts called the proposals modest and overdue, and pointed out that they lack enough support in the current Congress to pass.

House Speaker Mike Johnson, R-La., called Biden's Supreme Court proposal “dead on arrival" Monday.

RISING MAINSTREAM CALLS FOR REFORM

But legal experts said that Biden and Harris' backing suggest there is rising mainstream support for reform — and they said now's the time for a nationwide discussion of more sweeping changes to the Supreme Court's power.

"This is a pretty big moment in the history of possible constitutional reform movements," Tsai said. "We talk about how realistic this stuff is, but you don't often get such clear backing for some of this."

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."

Tsai said it's likely that Biden and Harris have done polling that suggests the proposals have public support at a time when the Supreme Court's own favorability ratings have dropped — suggesting it has fallen out of step with the public.

"A lot of people want something to happen," Tsai said. "They want us to join the other democracies that have term limits on justices. They don't want to be governed by justices anymore."

He said the prospect of future reform would likely depend on Harris' victory in November, and Democrats winning more seats in Congress.

"Think about the kinds of problems that American society faces in terms of a Supreme Court that is too powerful and has become a kind of national policy maker," Tsai said. "How do you downsize that power?"

Meanwhile, conservative legal activist Leonard Leo — who the Washington Post reported directed tens of thousands of dollars to Justice Clarence Thomas's wife Ginni — slammed Biden's proposal.

He said Democrats want to destroy the court, and suggested that Biden should have instead proposed a ban on gifts for all public officials.

"No conservative justice has made any decisions in any big case that surprised anyone, so let's stop pretending this is about undue influence," Leo said in a statement. "It's about Democrats destroying a court they don't agree with."

TERM LIMITS FOR JUSTICES

Biden's op-ed doesn't exactly say how the U.S. could pass term limits for Supreme Court justices. Fordham University School of Law Julie Suk, who provided testimony to the commission, 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.

Section 1 of Article III reads: "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office."

Tsai said if the issue ended up being litigated, courts would decide whether the so-called Good Behavior Clause means lifetime tenure — or protection from Congress messing with their salaries.

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.

Tsai said term limits deal with the problem of justices serving for decades.

"Parties that want to entrench their own policies look for younger jurists," Tsai said, pointing to 76-year-old Justice Clarence Thomas.

Thomas, who got on the court at the age of 43, is set to become the longest serving justice in U.S. history.

Tsai said rotating justices to another position in the judiciary could deal with concerns about the Constitution prohibiting Congress from interfering with their salaries.

Suk said calls for term limits get more bipartisan support than other court reforms, 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."

THE POWER AND LIMITS OF CONSTITUTIONAL INTERPRETATION

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."

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.

Tsai pointed out that compared to our eighteenth-century Constitution, "every other major democracy and some non-democracies have much newer constitutions than ours."

"So we've got a lot of gaps in ours, and there hasn't been a lot of updating in writing," he said.

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."

Tsai pointed out that former President Obama's landmark healthcare law faced years of litigation. Though the Supreme Court has upheld the law three times, a 2012 ruling made Medicaid expansion optional for states.

"These incredibly difficult policy questions that require credible and intricate compromises can be wiped out on a vote like that," Tsai said.

Tsai said in Bush v. Gore, the Supreme Court "ended a presidential election ended a recount, largely because the justices just felt like it would be too tough on the country for this to go on."

"This is incredible national policy making power, and the term limits doesn't really get at that kind of a problem," Tsai said.

Sprigman said: "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.

Doerfler said controversial court decisions have often led to calls for 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, 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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REIGNING IN THE COURT'S POWER

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.

Tsai pointed out that Congress has created everything from circuit courts to bankruptcy courts, while limiting the power of federal courts to issue writs of habeas corpus.

"There's a lot of precedent supporting Congress's power to reorganize the courts, especially the inferior courts, and also to change appellate jurisdiction," Tsai said.

Sprigman argued Congress has the constitutional power to limit 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 supermajority requirement that could say: "If the Supreme Court wants to declare a federal statute unconstitutional, it has to do so by supermajority, 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. She said a committee of judges could enforce the rules.

Chief Justice John Roberts, in contrast, has argued that any effort to impose a judicial ethics code would violate the separation of powers.

"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."