No clear path to approval for Biden’s proposed Supreme Court changes

President Biden has officially proposed changes to the Supreme Court of the United States, including a constitutional amendment, marking a shift in his position on court reform over the years.

Biden’s opinion piece in the Washington Post cited the recent decision by the court which granted significant immunity to the Oval Office, limiting the likelihood of prosecution for former President Trump’s alleged role in the January 6th capitol riot. 

Much of the Republican party would require convincing. Senator Lindsay Graham, R-SC, warned that the Democrats’ court reforms reflect a disdain for the court’s refusal of their agenda, and are in reality meant to “marginalize” and “destroy” the court. 

“The Roberts court has brought constitutional balance back to the court, and the liberals in this country want to pack the court. They want to destroy the court,” Graham said in an interview with CBS. “So their initiatives coming from Biden will be dead on arrival in the Senate. They have no desire to make the court better. They’re just trying to make it more liberal.”

 Ted Cruz (R-TX) made similar remarks last week in his podcast “Verdict”, saying that Biden’s reforms are an attempt to “utterly politicize” the Court. He contrasted Democrats today with the Democrats who rejected FDR’s proposal.

“There are no Democrats willing to stand up to the radicals now,” Cruz said. 

In an interview with MSNBC, Sen. Cory Booker, D-New Jersey, said that “these are ideas which don’t come from one side of the aisle.” 

“Giving term limits gives some regularity and predictability to our courts, and has people involved in the presidency in their elections knowing that if we elect a president they’re going to have two appointments to the highest court in the land, and prevents once president from having an outsized influence on the court,” Booker said.

Booker said the supreme Court Ethics, Recusal, and Transparency (SCERT) Act which would “require Supreme Court justices to adopt a binding code of conduct, create a mechanism to investigate alleged violations of the code of conduct and other laws, improve disclosure and transparency when a justice has a connection to a party or amicus before the Court, and require justices to explain their recusal decisions to the public.” 

Any constitutional amendment would require two-thirds approval in both the House and Senate. Republicans control the House with an eight-seat majority. 

“This dangerous gambit of the Biden-Harris Administration is dead on arrival in the house,” said House Speaker Mike Johnson, who was a constitutional lawyer before his career in politics. The proposal would “tilt the balance of power and erode not only the rule of law, but the American people’s faith in our system of justice.”

Democrats have been calling for court reform for decades, dating all the way back to the 1930s when President Franklin Delano Roosevelt proposed the Judicial Procedures Reform Bill of 1937, often referred to as the “court-packing plan.”

“The Supreme Court’s presidential immunity decision betrays two centuries of commitment to the idea that no one is above the law,” Jamie Raskin, D-Maryland, said in a post on X Sunday morning. “I’m proud to be leading a constitutional amendment with [Representative Joe Morelle] to reverse this outrageous ruling by a neo-monarchical Court.”

Vice President Kamala Harris was quick to support Biden’s proposal. 

“In the course of our nation’s history, trust in the Supreme Court of the United States has been critical to achieving equal justice under law,” Harris wrote in a statement. “President Biden and I strongly believe that the American people must have confidence in the Supreme Court. Yet today, there is a clear crisis of confidence facing the Supreme Court as its fairness has been called into question after numerous ethics scandals and decision after decision overturning long-standing precedent.”

In a panel discussion last Thursday, Justice Elena Kagan, appointed by President Obama, said that she supported the creation of a committee of judges to examine alleged violations of the court’s recently undertaken ethics-code. 

Representative Adam Schiff, D-Calif., also expressed his support for Biden’s proposal. 

“Over the last few years, we have witnessed our freedoms recede and presidential powers dramatically expand through the actions of a Supreme Court willing to cast aside all precedent in favor of its reactionary agenda,” Schiff wrote in a statement. ““I’m grateful to President Biden for his leadership on this key proposal. We must unite behind these common-sense reforms to preserve our system of checks and balances for generations to come.”

Schiff has been a longtime advocate of court reform, recently creating a task force dedicated to increasing awareness in “the debate around key pieces of court reform legislation to fix and rebalance the court.”

Such legislation includes Schiff’s Judiciary Integrity Act, which would prohibit Justices from presiding over cases in which they may have a financial conflict of interest.

“The task force will be utilized as a platform to increase awareness and elevate the debate around key pieces of court reform legislation to fix and rebalance the court – The Judiciary Act to expand the Supreme Court, Supreme Court Ethics, Transparency & Recusal Act (SCERT) to require a binding code of ethics and transparency measures for justices, and the TERM Act setting term limits for justices.

Sen. Elizabeth Warren, D-Mass., also expressed support for court reform on X prior to Biden’s opinion on Monday. 

In response to the proposal, Kelly Shackelford, President, CEO, and Chief Counsel for First Liberty Institute called it a “scheme” and a “desperate attack to subvert the legitimacy of the Supreme Court.”

“Term limits are simply court-packing by another name and are designed to target Justices Thomas and Alito in an act of pure political revenge,” Shackelford said. “If successful, the judiciary will no longer be a safeguard of our civil liberties but will instead be little more than a political tool used to crush the freedom of Americans.”