Biden & Harris call for Supreme Court reform

How did we get here? And what does it mean?

Today, President Biden and Vice President Harris called for structural reforms to the out-of-control Supreme Court.

The endorsement of structural reform by America’s two most senior elected officials is a huge step forward in the effort to reign in the right-wing Court that is attacking our freedoms and dismantling our democracy.

Take Back The Court has been at the forefront of the Court reform movement for nearly six years. We’re excited and gratified by calls for structural reform from the President and Vice President, which represent a sea change in the politics of Court reform.

President Biden & Vice President Harris endorsed two important Supreme Court reforms

In an op-ed announcing his support for Court reforms, 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. […]

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.

President Biden is exactly right about the Court’s deeply un-American ruling granting presidents immunity for even crimes so antithetical to a free society as ordering assassinations of political rivals. As we wrote on July 2:

Six unelected, unaccountable right-wing justices decided that Trump should not face trial for the events of January 6th before this next election. But they did so much more than that. By “brute force,” in the words of Justice Sotomayor, they made the president “a king above the law.” For a group of people who claim to be so enamored with the Founders, it can’t be lost on them that this country was created so that every person should be equal under the law, and no one should have the powers of a monarch.

Noting that “The United States is the only major constitutional democracy that gives lifetime seats to its high court,” President Biden also embraced Supreme Court term limits. And he called for a much-needed binding code of ethics for Supreme Court justices:

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.

Shining a light on the Supreme Court’s corruption crisis has long been among Take Back The Court’s priorities. When the Supreme Court announced its phony “ethics code” last year, we explained that it was just a publicity stunt — a desperate and futile effort to stem the erosion of public confidence in deeply corrupt Republican justices:

Nothing in the document in any way binds the justices to behave ethically, imposes any requirement on them, or provides for any remedy or consequence for falling short of the principles it outlines. How toothless is the document? It uses the word “should” 53 times and the words “shall” and “must” a combined total of only 6 times. It’s little more than a press release. As a general matter, no politicians – and the Supreme Court justices are politicians – should be entrusted with policing themselves. The Supreme Court just reminded us why.

So why bother releasing such a transparently empty document? Because the justices know their corruption has caught up with them. Clarence Thomas’s (undisclosed), all-expenses-paid junkets with right-wing billionaires … the (undisclosed) forgiven loanfrom a billionaire Thomas used to buy a quarter-million-dollar recreational vehicle … the (undisclosed) sale of his mother’s home to a right-wing billionaire … the years of (undisclosed) payments from conservative activists to Thomas’s wife … the (undisclosed) tuition payments Thomas’s billionaire benefactor made for a relative in Thomas’s care … Neal Gorsuch’s (undisclosed) sale of a 40-acre property to the head of a law firm that has been involved in at least 22 cases before the Court during Gorsuch’s tenure … Sam Alito’s (undisclosed) luxury fishing trips with a right-wing billionaire who has had business before the court … the millions of dollars in (undisclosed) payments from law firms with business before the Supreme Court to Chief Justice John Roberts’ wife … these scandals and more have led to the lowest public confidence in the Supreme Court in the history of polling. The stench of corruption is unmistakable – and Congress is threatening to act. The Court’s phony new ethics document is the act of justices desperate to improve their image and arrogant enough to think they can do so without submitting to any real ethical requirements.

In a statement released by her presidential campaign, Vice President Harris made clear her support for the reform proposals:

President Biden and I are calling on Congress to pass important reforms – from imposing term limits for Justices’ active service, to requiring Justices to comply with binding ethics rules just like every other federal judge. And finally, in our democracy, no one should be above the law. So we must also ensure that no former President has immunity for crimes committed while in the White House.

These popular reforms will help to restore confidence in the Court, strengthen our democracy, and ensure no one is above the law.

The Biden/Harris reform proposals demonstrate the momentum and the need for Supreme Court reform

During her 2020 campaign for the Democratic presidential nomination, Harris signaled openness to Supreme Court reforms including expansion. But as The Washington Post noted in an article about President Biden’s reform proposals, he has been reluctant to embrace structural reform of the Supreme Court:

Biden has long resisted calls to reform the Supreme Court, and the announcement Monday marked a major shift in his posture toward one of America’s three branches of government. […] During the 2020 presidential race, Biden rebuffed calls from liberals who advocated expanding the court but he promised he would create a commission to study potential changes. He followed through on that vow after being elected, and the commission issued a 294-page report to the president. Before Monday, Biden had not acted on the commission’s report since it was approved in December 2021.

The full-throated embrace of structural reforms to the Supreme Court from the President of the United States, a man long opposed to such reforms, is — to borrow a phrase made famous by Biden himself — a big fucking deal.

So how did we get here?

Part of the answer is that organizations like Take Back The Court, Stand Up America, People’s Parity Project, Demand Justice, and United for Democracy have worked tirelessly for years to build awareness of the need for Supreme Court reform among both policymakers and the public at large.

But the biggest factor is the Republican Supreme Court justices themselves have inadvertently been the most powerful advocates for reforms to reduce their power. We have long said the Supreme Court functions as the legal department of the Republican National Committee. But it’s also the de facto communications department of the court reform movement. Its wildly unpopular and deeply un-American decisions, along with the flamboyant corruption of the Republican justices, have turned the public against the Court made undeniable the urgent need for reform. And the Court’s ruling granting presidents the powers of a king was reportedly the final straw for Biden, who immediately reached out to scholars and experts to discuss reforms.

Biden and Harris have opened the door to making the Supreme Court a key issue in the 2024 elections

We have long argued that the Supreme Court is a powerful and largely untapped campaign issue for Democrats. The Court’s deep unpopularity makes it a useful villain for Democrats — and because Republicans have used the Court to execute some of the most unpopular items on their agenda, like overturning Roe v Wade, they can’t easily disassociate themselves from criticism of it. Indeed, when the first reports surfaced that President Biden would embrace Court reform, Donald Trump immediately responded with a bizarre rant insisting that not only should the Court not be reformed, it should not even be criticized.

It is notable Kamala Harris announced her support for Supreme Court reforms via a statement issued by her presidential campaign, not by the Vice President’s office:

The Supreme Court’s right-wing supermajority has issued ruling after ruling in which they seize more power for themselves. They have made themselves a key campaign issue, and the American people deserve a robust debate about the Court’s behavior and what to do about it.

Supporting structural reform of the Supreme Court is now table stakes for serious policymakers

Term limits and a binding Supreme Court code of ethics are important reforms that address real problems with the Supreme Court — and Take Back The Court has long supported both. But neither reform would immediately rebalance the Court, disempowering the right-wing supermajority that is using the Court to attack our freedoms and dismantle democracy. That’s why Take Back The Court has always focused on expanding the Court: It’s the only reform that can be enacted with simple majorities in Congress that would immediately rebalance the court.

There will be plenty of debates and negotiations about the details of Court reform going forward. And we believe deeply in the importance of expanding and rebalancing the Court. But the big news this week — the sea change in the politics of the Court reform fight — is that with President Biden’s support for Supreme Court term limits, supporting structural reform of the Supreme Court is now table stakes for any policymaker who wants to be taken seriously when it comes to the Court and democracy.

As Joe Biden wrote in his op-ed:

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.