Executive summary

This brief covers President Biden’s proposals for reforms to the Supreme Court of the United States (SCOTUS). It will consider the history of this discourse, ongoing developments, the content of the proposals, and opinions and debates surrounding the issue.

Overview

  Since President Joe Biden stepped into office in the wake of COVID-19, the Supreme Court has been extremely active in making rulings on presidential immunity, government regulation of business, abortion rights, and affirmative action among other issues. The majority of Americans—even across party lines—have responded with disapproval for the court’s actions. According to a survey conducted by the Pew Research Center in July 2024, 51% of Americans expressed an unfavorable view of the court. This rating is 23 percentage points lower than it was in August 2020.

One such case that has depicted this trend of public disapproval and has been marred by public debate was 23-939 Trump v. United States. The case arose when  former President Donald Trump moved to dismiss his indictment on the  basis of presidential immunity, arguing that a President retains absolute immunity from criminal prosecution for actions performed within the bounds  of their official responsibilities. The case originated from  allegations that Trump conspired to overturn the 2020 election by intentionally spreading false claims of election fraud to obstruct the collecting, counting, and certifying of the election results. The indictment also alleges that Trump and his co-conspirators attempted to encourage former Vice President Pence to use his ceremonial role at the January 6 certification proceeding to fraudulently alter the election results, specifically alleging several conversations in which Trump pressured Pence to reject States’ legitimate electoral votes or send them back to state legislatures for review. The District Court denied the former President’s motion to dismiss, holding that “former Presidents do not possess absolute federal criminal immunity for any acts committed while in office”. Once the case escalated to the Supreme Court, however, Trump’s appeal was eventually granted. Six of the nine justices—Roberts, Thomas, Kavanaugh, Barret, Gorsuch, and Alito—voted in favor of Trump’s appeal that a former U.S. President maintains absolute immunity from criminal prosecution for actions within their conclusive and preclusive constitutional authority for all official acts.    

In response to the widespread disapproval that followed this ruling, on July 29th, 2024, President Biden announced a plan to reform the court, encourage the justices to reevaluate the reasoning behind the appeal, and “ensure no President is above the law.” In addition to calling for the revocation of the ruling, President Biden proposed term limits for the court. As it stands now, a Supreme Court justice serves a lifetime appointment unless they resign, retire, or are removed from office; this has been in accordance with Article III of the United States Constitution. While these lifetime appointments were intended to distance justices from political factions and polarization, its de facto effect has been just the opposite—justices, such as  Clarence Thomas, have failed to report millions of dollars in gifts, payments, and vacations from conservative groups. When ProPublica exposed these benefits—and the fact that Thomas failed to disclose those and others for decades—the justice characterized them as just the kinds of things good buddies do when they want to hang out, implying his status as a Supreme Court justice had nothing to do with it.  

However, it is important to note that Biden’s past stance was against such measures. In June 2024, before his publicly announced initiative involving the SCOTUS reforms, President Biden stated that the justice system and its decisions should be respected. Spectators could attribute Biden’s change in policy to the unfavorable implications of Trump v. United States. If Donald Trump were to beat Kamala Harris in the upcoming presidential election, potential justices including Alito, Thomas, and Roberts—who are 74, 76, and 69 years old respectively—could strategically retire. If this were to happen, Trump could increase the longevity of the GOP dominated court.

Policy Problem

   President Biden recently proposed reforms targeting the U.S Supreme Court, specifically advocating for term limits and a formal code of conduct. These proposals were in response to increased scrutiny over ongoing judicial behavior. To resolve this problem, Biden plans on setting an 18-year term limit for justices. This aims to have a regular turnover on the U.S. Supreme Court,  ensuring democratic accountability and judicial independence from presidents who are appointed in past years.   

Another potential issue that emerges is that the U.S. Supreme Court is not bound by a formal code of conduct, which has raised concerns about ethical structure. Biden’s proposed code would require justices to disclose all financial transactions and gifts, refrain from any public political activity, or be exempt from cases in which they or their spouses have financial interest.

Policy Options

   “First, I am calling for a constitutional amendment called the No One is Above the Law Amendment. It would make clear there is no immunity for crimes a former president committed while in office.” - Joseph R. Biden, 46th President of the United States. This quote from President Biden makes his proposal very clear. He believes that the US was founded on the principles that nobody is above the law, regardless of their profession or standing. The proposed constitutional amendment would make it so that the president’s limited power “resides with the people,” per a White House Official.   

The reasoning for this opinion resides in the outcome of former President Donald Trump’s Supreme Court case – he was granted immunity under the notion that “former presidents had absolute immunity for ‘core’ official acts.”  The 6-3 decision will most likely mean that the federal election subversion charges levied against him will be delayed. The official SCOTUS ruling rejected a previous federal appeals court decision that prevented Trump from exercising presidential immunity for the alleged election reversing crimes. The previous ruling asserted that, while presidents do have immunity for their official acts, Trump’s actions did not qualify as official. Trump, now granted immunity, described this reversal as a “big win.”    

This decision was highly controversial, with programs like the American Civil Liberties Union (ACLU) openly dissenting. Supporters of the dissenting side believe that placing presidents above the law is wrong and that not prosecuting Trump for “deploying Justice Department officials to pursue his own criminal ends” is unconstitutional.   

Similarly, some believe that Biden’s proposed reforms would be a positive for the US. In the “Good Behavior Clause” of the Constitution, the courts are said to be barriers to “despotism of the [executive branch] (CBC News).” It is believed by some that Joe Biden’s proposals will reaffirm the independence of the court and ensure that the justices’ biggest priority is making sure that the U.S. Constitution is being followed.

Others, however, believe that Biden is pushing a false and unnecessary narrative with his proposed SCOTUS immunity reform. For one, opponents believe that this is merely the latest step in Biden’s orchestrated attacks on government branches, specifically the conservative parts. This push for reform can be seen as a way to drown out the conservative voices on the Supreme Court. USA Today writer Ingrid Jacques summarizes Biden’s proposed changes as “blurring the lines of the government’s separation of powers and the independence the court has enjoyed since its inception.”

Public Opinion and the 2024 election

    In recent years, the Supreme Court has ruled on extremely controversial cases, including Roe V. Wade in 2022 and the Presidential Immunity ruling this year, which have ended in unpopular public verdicts. Accordingly, since these rulings largely affect policy, for the Democratic Party, it would align more favorably for Harris to show her support for public opinion against decisions made by Judges Sotomayor, Brown, Jackson, and Kagan who are more liberal. However, it would be more beneficial for Trump and the Republican Party to side with the court as the rulings align more closely with his platform, especially considering the fact that Trump himself appointed Judges Barrett, Kavanaugh, and Gorsuch. As such, the Harris campaign continues to condemn the more conservative rulings on civil liberties that the Court has enacted, while the Trump campaign continues to side with the court. However, because cases that deal with controversial policy only at the highest level get brought up to the Supreme Court, other lower-level policy decisions can be passed through Congress. Despite this, since the Senate has a democratic majority and the House of Representatives has a republican majority, it can be difficult to get policy passed through both chambers of Congress. And, even with the party differences, Congress is only able to produce the laws but does not have the judicial power to enforce them and the executive power to oversee them; these powers remain with the other branches of government in the checks and balances system. This makes it difficult for either candidate to do much with more conservative or liberal policy because of the party lines in Congress. Due to these restrictions on Congress, it would take bipartisan agreement to be able to pass any policies or laws, and candidates should carefully choose how to approach them. However, voters could use the stances of these candidates on these controversial policy issues to decide who to vote for and even whether they should vote or not. While the upcoming election cycle will be unpredictable, each candidate should think thoroughly about using policies that will appeal more to their voter base as well as younger and undecided voters to secure the election, and to make sure this election remains representative of the American public by November.     

In fact, recent polling reveals surprisingly broad bipartisan public support for SCOTUS reforms. According to a USA Today/Ipsos poll from August, large majorities across party lines favor key SCOTUS reform measures such as a binding code of conduct, ensuring no president is above the law, and 18-year judicial term limits. When looking at support from policymakers, by the end of 2023, there was a common sentiment between both Democrats and Republicans that the Supreme Court reforms were necessary.       

However, there is a stark difference between opinion and political reality. Current polls show widespread distrust in the Supreme Court, specifically from Democrats after landmark events such as the overturning of Roe V. Wade in which many believed proved justices were influenced by partisan interests. While reform is generally popular, political support wanes when presented within partisan context. As Politico discusses, Democrats like Senator Johnson (GA) and Senator Whitehouse (RI) support reforms, yet face trouble with congressional filibusters stemming from  Republican opposition and moderate Democratic reluctance. For Republicans, although they ideologically agree change is needed and support for Biden’s proposals is justifiable, lawmakers are unwilling to give up the political advantage their party gains from the current Supreme Court structure with Chief Justice Roberts Jr. and Justices Thomas and Alito. According to The Hill, when reforms are tied to Biden instead of neutrality, Republicans automatically reject the policies. Ultimately, despite President Biden’s support for Supreme Court reforms, changes to the current system will likely remain stalled in Congress due to partisan challenges and gridlock, even with noticeable popularity among American voters.

Acknowledgments

The Institute for Youth in Policy wishes to acknowledge Eli Solomon, Anagha Nagesh, Nolan Ezzet and other contributors for developing and maintaining the Policy Department within the Institute.

References

1. “Biden Calls for Supreme Court Reforms, Amendment to Strip Presidents of Immunity from Prosecution.” ABC News. Accessed November 3, 2024. https://abcnews.go.com/Politics/biden-calls-supreme-court-reforms-amendment-strip-presidents/story?id=112356142. ​
2. ​​Fortinsky, Sarah. “Majority of Republicans Support Supreme Court Reforms in Biden’s Proposal: Poll.” The Hill, August 12, 2024. https://thehill.com/regulation/court-battles/4824095-republicans-support-supreme-court-reforms/. 
3. Jacques, Ingrid. “Bad-Idea Biden Strikes Again: His Terrible Supreme Court Reforms Would Hurt Our Democracy.” USA Today, August 27, 2024. https://www.usatoday.com/story/opinion/columnist/2024/08/02/biden-supreme-court-reform-term-limits-constitution/74588423007/. 
4. J. Breckling, Ed., The Analysis of Directional Time Series: Applications to Wind Speed and Direction, ser. Lecture Notes in Statistics.  Berlin, Germany: Springer, 1989, vol. 61.
5. Most Americans believe the presidential election will have ... Accessed November 3, 2024. https://www.ipsos.com/en-us/most-americans-believe-presidential-election-will-have-major-impact-future-supreme-court. 
6. Most Americans support Supreme Court reforms - The Washington Post. Accessed November 3, 2024. https://www.washingtonpost.com/politics/2024/07/17/most-americans-support-supreme-court-reforms/. 
7. M. Wegmuller, J. P. von der Weid, P. Oberson, and N. Gisin, “High resolution fiber distributed measurements with coherent OFDR,” in Proc. ECOC’00, 2000, paper 11.3.4, p. 109.
8. Nazzaro, Miranda. “Sen. Coons Suggests Biden Will Respect Supreme Court Ruling on Presidential Immunity.” The Hill, June 24, 2024. https://thehill.com/homenews/senate/4735657-chris-coons-joe-biden-supreme-court-donald-trump-immunity/%20%E2%80%98. 
9. Opinion | Joe Biden: My plan to reform the Supreme Court and ensure no president is above the law - The Washington Post. Accessed November 3, 2024. https://www.washingtonpost.com/opinions/2024/07/29/joe-biden-reform-supreme-court-presidential-immunity-plan-announcement/. 
10. Radford, Antoinette, Maureen Chowdhury, Dan Berman, John Fritze, Aditi Sangal, and Michelle Shen. “Supreme Court Issues Decision on Trump Immunity Case | CNN Politics.” CNN, July 2, 2024. https://www.cnn.com/politics/live-news/trump-immunity-supreme-court-decision-07-01-24/index.html. 
11. Roth, Gabe. “What Senators Have Said about Supreme Court Term Limits.” Fix the Court, November 30, 2023. https://fixthecourt.com/2023/11/senatorsonscotustermlimits/. 
12. Schladen, Marty. “U.S. Supreme Court Justices Take Lavish Gifts - Then Raise the Bar for Bribery Prosecutions • Ohio Capital Journal.” Ohio Capital Journal, April 27, 2023. https://ohiocapitaljournal.com/2023/04/26/u-s-supreme-court-justices-take-lavish-gifts-then-raise-the-bar-for-bribery-prosecutions/.
13. S. M. Metev and V. P. Veiko, Laser Assisted Microtechnology, 2nd ed., R. M. Osgood, Jr., Ed.  Berlin, Germany: Springer-Verlag, 1998.’
14. “Supreme Court Grants Trump Broad Immunity for Official Acts, Placing Presidents above the Law.” American Civil Liberties Union, July 1, 2024. https://www.aclu.org/press-releases/supreme-court-grants-trump-broad-immunity-for-official-acts-placing-presidents-above-the-law. 
15. S. Zhang, C. Zhu, J. K. O. Sin, and P. K. T. Mok, “A novel ultrathin elevated channel low-temperature poly-Si TFT,” IEEE Electron Device Lett., vol. 20, pp. 569–571, Nov. 1999.
16. US Supreme Court girds for rush of election-related litigation | Reuters. Accessed November 3, 2024. https://www.reuters.com/legal/us-supreme-court-girds-rush-election-related-litigation-2024-11-01/. 
17. Wral. “Editorial: Biden’s Proposed Reforms Would Enhance U.S. Supreme Court’s Credibility.” WRAL.com, August 14, 2024. https://www.wral.com/story/editorial-biden-s-proposed-reforms-would-enhance-u-s-supreme-court-s-credibility/21576352/. 

‍