After the Supreme Court decided that the president is seemingly immune from prosecution for actions taken as the course of most of their duties, President Biden announced a proposal for several reforms related to the Court. Public opinion of the Supreme Court is at one of its lowest points ever, and the need for reforms appears to be building. So what changes did the president propose, and could they realistically happen?

• A constitutional amendment to clarify that former presidents are not immune from crimes committed in office. The Court’s decision basically said that a president can’t be prosecuted for crimes related to “actions relating to the core powers of their office,” a sweeping and somewhat vague granting of legal immunity. A constitutional amendment is a more permanent and binding form of law, while a Court decision can be reversed by a future decision at potentially any time. Amending the Constitution requires either a two-thirds vote of approval in both the House and the Senate, or that two-thirds of state legislatures approve a call for a convention, after which three-fourths of states must vote to ratify the proposed amendment. Given the polarized nature of current politics, it is nearly impossible for this to happen anytime soon.
• The introduction of term limits to Supreme Court justices. Biden proposed that presidents would appoint a justice to the Court every two years, with each justice being limited to serving a maximum of eighteen years. Virtually every other democratic country incorporates different kinds of limits on their highest courts, including term limits as well as age limits for some, while the US allows lifetime appointments. The idea is that limited, scheduled terms would reduce the partisan political elements that often characterize Court appointments, reduce how long the impact of appointments would affect politics, and begin to restore the Court’s reputation. The proposal didn’t specify how this change would be implemented or enacted as law, so it is unclear how realistically it could be achieved.
• A binding code of conduct applying to Supreme Court justices. A previous edition of Fakchex covered the fact that there has not been a clear ethics code which fully governs the behavior of the Supreme Court. Biden deemed the code that the justices adopted in November—in response to revelations about undisclosed gifts and payments received by people involved in cases before the Court—as “weak and self-enforced,” and proposed a system imposing several restrictions:
  1. A requirement that justices disclose all gifts received
  2. A requirement that justices refrain from public political activities
  3. A requirement that justices recuse themselves from any cases in which they or their spouses have financial (or other) conflicts of interest.

While the Court’s self-adopted code has been widely criticized, it remains unclear how an effective code of ethics could be enforced on the Supreme Court.

Biden’s proposals derive from the conclusions released by the commission he appointed to study Supreme Court reforms early in his administration, which issued its findings in December of 2021. Term limits and an ethics code are ideas that enjoy strong bipartisan support among American voters, but the sticking point remains the practicality of implementing these measures. It is unlikely that Donald Trump will further champion these measures, should he be elected.

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