In an opinion piece in The Washington Post, President Joe Biden proposed important reforms to the U.S. Supreme Court. He recommended a term limit of 18 years and an ethics code for Justices of the Supreme Court. Public opinion of the Court is at its lowest since polling began in 1987. This may be in response to ethical and partisan scandals associated with the Court, as well as politically-motivated decisions.
During Trump’s single term, he was able to add three justices to the Court, stacking it with a 6-3 hard-right majority (thanks to the Federalist Society, its leader Leonard Leo, President Trump, and the canny Republican Senate Majority Leader Mitch McConnell).
The Court first showed its radicalism by overturning Roe v. Wade, then followed with several other extremist decisions, giving the President “absolute immunity” for any crimes he commits while in office (Trump v. U.S.), sharply reducing the powers of regulatory agencies (the “Chevron Doctrine”), eroding the line between church and state (Carson v. Makin)), and more. You might reasonably wonder why President Biden didn’t push these goals sooner. As an institutionalist, he was loath to breach the separation of powers, and he knew he did not have the votes in Congress to win. Nonetheless, he is laying out important aims for the future.
President Biden wrote:
This nation was founded on a simple yet profound principle: No one is above the law. Not the president of the United States. Not a justice on the Supreme Court of the United States. No one.
But the Supreme Court’s 6-3 decision on July 1 to grant presidents broad immunity from prosecution for crimes they commit in office means there are virtually no limits on what a president can do. The only limits will be those that are self-imposed by the person occupying the Oval Office.
If a future president incites a violent mob to storm the Capitol and stop the peaceful transfer of power — like we saw on Jan. 6, 2021 — there may be no legal consequences.
And that’s only the beginning.
On top of dangerous and extreme decisions that overturn settled legal precedents — including Roe v. Wade — the court is mired in a crisis of ethics. Scandals involving several justices have caused the public to question the court’s fairness and independence, which are essential to faithfully carrying out its mission of equal justice under the law. For example, undisclosed gifts to justices from individuals with interests in cases before the court, as well as conflicts of interest connected with Jan. 6 insurrectionists, raise legitimate questions about the court’s impartiality.
I served as a U.S. senator for 36 years, including as chairman and ranking member of the Judiciary Committee. I have overseen more Supreme Court nominations as senator, vice president and president than anyone living today. I have great respect for our institutions and the separation of powers.
What is happening now is not normal, and it undermines the public’s confidence in the court’s decisions, including those impacting personal freedoms. We now stand in a breach.
That’s why — in the face of increasing threats to America’s democratic institutions — I am calling for three bold reforms to restore trust and accountability to the court and our democracy.
First, I am calling for a constitutional amendment called the No One Is Above the Law Amendment. It would make clear that there is no immunity for crimes a former president committed while in office. I share our Founders’ belief that the president’s power is limited, not absolute. We are a nation of laws — not of kings or dictators.
Second, we have had term limits for presidents for nearly 75 years. We should have the same for Supreme Court justices. The United States is the only major constitutional democracy that gives lifetime seats to its high court. Term limits would help ensure that the court’s membership changes with some regularity. That would make timing for court nominations more predictable and less arbitrary. It would reduce the chance that any single presidency radically alters the makeup of the court for generations to come. I support a system in which the president would appoint a justice every two years to spend 18 years in active service on the Supreme Court.
Third, I’m calling for a binding code of conduct for the Supreme Court. This is common sense. The court’s current voluntary ethics code is weak and self-enforced. Justices should be required to disclose gifts, refrain from public political activity and recuse themselves from cases in which they or their spouses have financial or other conflicts of interest. Every other federal judge is bound by an enforceable code of conduct, and there is no reason for the Supreme Court to be exempt.
All three of these reforms are supported by a majority of Americans — as well as conservative and liberal constitutional scholars. And I want to thank the bipartisan Presidential Commission on the Supreme Court of the United States for its insightful analysis, which informed some of these proposals.
We can and must prevent the abuse of presidential power. We can and must restore the public’s faith in the Supreme Court. We can and must strengthen the guardrails of democracy.
In America, no one is above the law. In America, the people rule.
Diane Ravitch's blog 