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Aug. 8 (UPI) -- Discussion of Supreme Court reform has become a more serious topic in Washington after President Joe Biden made three specific proposals last week. Biden proposed three reforms for the high court: 18-year term limits, limiting presidential immunity and creating a code of conduct to be enforced by Congress.
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The proposals face different paths to taking effect. A code of conduct can be created and instituted by legislative action, passed through Congress and signed by the president. Codifying limits to presidential immunity will require a constitutional amendment, passed by two-thirds of the House and Senate, then ratified by three-fourths of state legislatures.
Scholars are in some disagreement about what it would take to place term limits on Supreme Court justices.
"There are recurring periods, for whatever set of reasons, where the court ends up more sharply out of line with public views in the big picture," Thomas Keck, professor of political science at Syracuse University, told UPI. "We are in that period right now. We have sort of a permanent Republican majority on the Supreme Court but Democrats have won seven of the last eight popular votes. Every time that's been true in the past and led to sharp political contrasts, there have been calls for reforming the Supreme Court."
President Franklin Delano Roosevelt attempted to reform the court when it struck down several of his New Deal policies in the 1930s. The makeup of the court changed following his re-election for a third term. By 1941, only two justices from FDR's inaugural year as president remained due to two deaths and five retirements.
Court reform was far more common in the 19th century. Congress expanded the court seven times. It has become far less common, though calls for expansion have picked up steam particularly in the last decade.
Term limits
Biden proposed that Supreme Court justices be subject to staggered 18-year term limits. This would see a new Supreme Court justice appointed by the president every two years.
Justice Clarence Thomas has served on the court for 32 years. Only nine justices have ever served longer.
Lifetime appointments to the nation's highest court is an oddity in democratic countries around the world. The White House noted this in its fact sheet discussing Biden's proposals.
"The United States is the only major constitutional democracy that gives lifetime seats to its high court Justices," the White House said. "Term limits would help ensure that the Court's membership changes with some regularity; make timing for Court nominations more predictable and less arbitrary; and reduce the chance that any single presidency imposes undue influence for generations to come."
The appointment of justices has come with a level of happenstance, with vacancies created by elective retirement or death. Former President Barack Obama appointed two justices during his eight years in office. A third vacancy opened in his final year, but a Republican-led Senate halted Obama's appointment of Merrick Garland to the high court.
Former President Donald Trump served just one term in office but appointed three justices, including Amy Coney Barrett who was sworn in days before the 2020 election.
Justin Crowe, professor of leadership students and political science at Williams College in Williamstown, Mass., said imposing term limits may be the most difficult reform to pass, requiring a constitutional amendment. He told UPI that some argue it could be done by statute, though he finds this unlikely.
The disagreement over what is needed to enact term limits comes from the Constitution's Good Behavior Clause. The clause states that "judges, both of the supreme and inferior Courts, shall hold their offices during good behavior." This doctrine is understood to imply that judges are given lifetime appointments, assuming they remain in good behavior.
A minority of scholars, according to Crowe, argue that a justice could be removed from the high court by a term limit but their removal could still meet the code of the Constitution if they remain in the judiciary. This could be through moving them down to an appellate court or granting them senior status -- a sort of semi-retirement.
"The idea there is that in the judiciary, judges are given senior status. Basically it means you can be replaced but can still hear cases from time to time," Crowe said. "There's been this idea that Supreme Court justices would then join appellate courts because that would get around the problem in the Constitution that says judicial commissions are kept during good behavior."
Crowe does not agree that there is a way around recognizing lifetime appointments of Supreme Court justices short of a Constitutional amendment.
Term limits may face an arduous process to enact but it is perhaps the least controversial of Biden's proposals, according to Paul Collins, professor of legal studies and political science at the University of Massachusetts.
"About three-fourths of Americans support term limiting justices on a bipartisan basis," Collins told UPI. "There's pretty strong agreement that the best way to do it would be these staggered 18-year terms."
Collins said he is of the belief that term limits could be passed by legislation, with justices moving to senior status afterward.
"We have precedent for lower court justices moving into semi-retirement," he said. "It sounds strange but it's not at all a radical idea."
Presidential immunity
Biden has been critical of the Supreme Court's decision last month to grant Trump broad presidential immunity from prosecution for actions taken as president. He called for a "No One Is Above the Law Amendment," establishing that former presidents do not have any immunity from federal criminal indictments, trial, conviction or sentencing.
Senate Democrats have taken up Biden's call to action. Senate Majority Leader Chuck Schumer, D-N.Y., introduced the "No Kings Act" last week. This act clarifies that Congress will determine whether federal criminal laws apply to presidents and vice presidents, not the Supreme Court.
"The Founders were explicit -- no man in America shall be a king. Yet, in their disastrous decision, the Supreme Court threw out centuries of precedent and anointed Trump and subsequent presidents as kings above the law," Schumer said in a statement.
The legislation has a long way to go before there is any possibility of amending the Constitution. It requires bipartisan support in the current makeup of Congress. Polarization on Capitol Hill presents an immense hurdle.
House Speaker Mike Johnson, R-La., called Biden's reform plans as a whole "dead on arrival."
Crowe said that while much of the conversation about the immunity decision has been centered on Trump, it is important to remember the precedent is now set for anyone who holds the office of the president.
"Everyone seems to interpret it merely through the lens of Trump," he said. "In theory, someone could say, 'Do you want a potential President Kamala Harris to have immunity for anything she does?'"
Code of conduct
The Supreme Court adopted its own code of conduct in November for the first time in its more than 230-year history. The code states that justices should "uphold the integrity and independence of the judiciary, avoid impropriety and the appearance of impropriety in all activities and should perform the duties of the office fairly, impartially and diligently."
The code outlines conditions by which a justice should disqualify or recuse themselves from overseeing a case. However, there is no inherent enforcement mechanism in place.
The issue of conduct has taken the spotlight in the past year following a 2023 report from ProPublica detailing Justice Thomas accepting extravagant gifts and expensive trips from conservative billionaire donor Harlan Crow.
Senate Democrats have continued to investigate Thomas, reporting Monday of more international travel that the justice attempted to conceal that they allege was improper.
"I am deeply concerned that Mr. Crow may have been showering a public official with extravagant gifts, then writing off those gifts to lower his tax bill," Sen. Ron Wyden, D-Ore., said in a letter.
Justice Samuel Alito has also come under fire for his activities outside the courthouse. Like Thomas, he is accused of accepting expensive trips from a conservative billionaire, Paul Singer, in a report by ProPublica.
Alito's ability to be impartial has also been brought into question after flying a flag upside down in front of his house after Jan. 6, 2021, in protest of Biden winning the election. Democrats called on Alito to recuse himself from hearing Trump's presidential immunity case, which he refused to do.
In July 2023, Alito shot down calls from the Senate to establish a code of conduct in a firm rebuke of Congress' authority over the high court.
"I know this is a controversial view, but I'm willing to say it," Alito said. "No provision in the Constitution gives them the authority to regulate the Supreme Court -- period."
Keck argues that Congress has clear authority, bestowed by the Constitution, to impose ethics rules on the Supreme Court as it does lower courts and other federal employees. But he is skeptical about Congress' ability to pass and enforce a code.
"There are some ethics rules, including post-Watergate laws that already apply to Supreme Court justices, Keck said. "Mostly Congress has left that up to the justices to police themselves."
