The proposals are likely to include term limits for Supreme Court justices, a binding ethics code, and a constitutional amendment limiting the president’s and other officials’ immunity from prosecution.
If media reports are accurate, President Biden will soon put forward a package of judicial reforms for Congress to enact. The summarizes their likely content:
President Biden is finalizing plans to endorse major changes to the Supreme Court in the coming weeks, including proposals for legislation to establish term limits for the justices and an enforceable ethics code, according to two people briefed on the plans.
He is also weighing whether to call for a constitutional amendment to eliminate broad immunity for presidents and other constitutional officeholders, the people said, speaking on the condition of anonymity to discuss private deliberations.
On the policy merits, these are all actually good ideas, subject to the important caveat that there may be devils residing in the details. However, the term limits proposal cannot be enacted by ordinary legislation, but requires a constitutional amendment.
Term limits for Supreme Court justices (usually taking the form of 18-year terms) is an idea that enjoys widespread support from both experts and the general public. It brings together numerous legal scholars on different sides of the political spectrum, such as Sanford Levinson on the left, and Steve Calabresi on the right. Term limits attracted broader support than any other proposal considered by Biden’s 2021 Commission on Supreme Court reform. A 2022 AP/NORC poll found that 67% of the public supports the idea, including 82% of Democrats and 57% of Republicans. I myself also support 18 year terms for justices, though I have warned this idea is unlikely to put an end to ideological and partisan conflict over the Court.
The problem with Biden’s potential proposal is that he apparently wants Congress to enact the idea by statute, rather than through a constitutional amendment. Along with most other legal scholars, I think that’s wrong as a matter of constitutional law. It would also set a dangerous precedent, if the president and Congress succeeded in getting it enacted, and courts did not strike it down as unconstutional. I explained why in a 2020 post:
If Congress can impose an 18 year term limit, they can also impose much shorter ones, such as a five year limit or a two year limit. That would make it easy for any party that controls both Congress and the White House to get rid of justices whose rulings they dislike, and replace them with more supportive jurists. And if Congress can impose term limits on all justices, they can also selectively impose them on specific justices it especially wants to get rid of, while leaving the others alone. For example, if a Democratic Congress wished to get rid of Gorsuch, Kavanaugh, or Amy Coney Barrett…, they could pass a law imposing very short terms on justices appointed in 2017, 2018, and 2020, respectively.
