Why Joe Biden Couldn’t Hold Back on Supreme Court Reform Any Longer (2024)

On Monday, President Joe Biden ended his resistance to calls for Supreme Court reform, announcing in the final months of his presidency his own proposal to reform the court. For years, Biden refused to join leading Democrats and many scholars of the court who had embraced the concept of expanding the Supreme Court, imposing terms limits, or otherwise restraining the power of an increasingly muscular and reckless conservative majority on the court. A wave of ethical scandals involving undisclosed lavish trips and gifts provided to multiple conservative members of the court, along with the open support by the wives of Justices Clarence Thomas and Samuel Alito for at least the spirit of Trumpian “Stop the Steal” election denial efforts, and the refusal of those justices to recuse themselves from cases involving accountability for Trump’s attempts to stay in power, have brought even more pointed demands for changes to how the court operates.

By tradition and design, our Supreme Court has largely been untouchable. In our federal system judges are not elected, but appointed by the president and confirmed by the Senate. In accordance with Article 3 of the Constitution, our highest court, in contrast to every other Western democracy, affords lifetime tenure to the justices who serve on the court. Their salaries cannot be reduced and they can only be removed for cause through the process of impeachment. Separation of powers—a fundamental principle of our tripartite government—counsels against efforts by the president or Congress to attempt to strong-arm the court.

When in 1803 the first chief justice of the United States, John Marshall, defined the core function of judicial review as the power to “declare what the law is,” the insulation from removal or political disfavor ensured that justices of the United States Supreme Court would be, during the period of their active service—on average 30 years—arguably the most powerful jurists in the world. The unintended consequence of the effort to insulate the court so completely is that there really is very little accountability for a Supreme Court majority that in rare instances goes, for lack of a better word, rogue. There is no template for how to rein in such a court. But the conduct of the majority of this current court has called this into question.

In just the last three terms alone, the court has upended long-standing precedents, fundamentally changing the allocation of power between the branches of government, wiping away rights it formerly deemed fundamental, and upending the protections and guarantees upon which tens of millions of Americans had come to rely for decades. This term, the court effectively read an entire provision—Section 3—out of the 14^th Amendment of the Constitution by declaring that Congress must create enabling legislation to prohibit insurrectionists from serving in government, despite the amendment’s clear self-executing prohibition. The conservative majority overturned its own 40-year-old precedent that instructed federal courts to defer to the expertise of federal agencies empowered to enforce statutes where the statutory language is ambiguous. The court’s decision in Loper Bright v. Raimondo now makes the federal courts—the Supreme Court specifically—the arbiter in cases of contested agency statutory interpretation. Combined with the “major questions doctrine” the court announced last term, the court has inserted itself firmly between Congress and federal agencies, a stunning power grab with consequences still unforeseen.

The conservative majority ended this term by smashing the very concept of the rule of law—the principle that in a democracy the law applies to all equally, whether rich or poor, Black or white, powerful or powerless. Instead, the court declared that the president of the United States is immune from prosecution for criminal conduct so long as the crime was undertaken within the scope of his presidential power, or even at the outer ring of the president’s power, creating what Justice Sonia Sotomayor described in her dissent as “a law-free zone around the President.” Ominously employing the warning of Justice Robert Jackson in the Korematsu case upholding the internment of Japanese Americans, Sotomayor likened the majority’s decision to “a loaded weapon” for any president “that wished to place his own interests … above those of the Nation.” Justice Ketanji Brown Jackson, in her own forceful dissent, observed grimly that “the Rule of Law has now become the rule of judges.”

And, of course, two terms ago, the court struck down as unconstitutional the 50-year-old precedent enshrining abortion rights as fundamental to a woman’s right to privacy. In “leaving the matter to the states,” the court unleashed a wave of increasingly dystopian anti-abortion laws that compelled girls as young as 10 to travel out of state to obtain abortion after rape, or to bear the children of their rapist. That same term, the court even more expansively read its prohibition on state laws that restrict gun rights. And then in the last term, the court overturned 40 years of precedent to end race-conscious admissions at colleges and universities.

In many of these actions, the court not only boldly upended long-standing expectations of substantive rights and guarantees and overrode the authority and power of Congress and the executive branch, it also tortured its own procedures and the very practices designed to determine when and how cases are heard. This was never more evident than in the court’s approach to standing, the doctrine that ensures that litigants can only bring cases in federal court if they are personally injured by the defendant’s conduct. Last term, in 303 Creative v. Elenis, standing was deemed satisfactory for a plaintiff who merely “worries” that if she offers custom wedding website services, she will run afoul of Colorado’s nondiscrimination law if she refuses to serve gay and lesbian couples. In other cases, the court abandoned the norm of judicial restraint, reaching out to decide issues that were neither presented nor briefed by the parties.

The court has also shown a remarkable disdain for the work of trial courts, wiping out findings of fact made after painstaking weeks of complex trials, often doing so with “shadow docket” or emergency orders that disappear lower court decisions without review of the substantive decisionmaking. In other cases, the court simply supplants its own intuition or understanding of the facts for that of the trial court, a fundamental violation of the deference normally afforded trial court findings of fact.

It may be impossible for most Americans to understand how fundamentally the court has changed the nature of litigation, and the rules it created over decades to govern its own decisionmaking. Most alarming is how profoundly the court has reordered American life, and reallocated political power, in just a few short years, away from Congress and the president and to itself.

The three progressive justices on the court warn in increasingly desperate and ominous dissents that the conservative majority is dealing from the bottom of the deck.

The plan outlined by Biden on Monday includes a system of term limits and the creation of an enforceable ethics code. Vice President Kamala Harris, should she prevail in this November’s presidential election, will be under pressure to take up this important issue. Of course, the power to make changes to the court first and foremost falls within the constitutional power of Congress. The president can set such legislation as a priority, lobby for its passage, and sign it should it receive congressional approval, but Congress will need to be convinced to undertake reform measures. That will not happen with the current Congress, in which Republicans control the House and Democrats lack a solid majority in the Senate.

Even if Democrats controlled both houses of Congress, there will be some who are reticent about taking on Supreme Court reform. They will argue that tinkering with the institution of the Supreme Court is a dangerous game, one that can boomerang to defeat one’s own interests. Others will argue that reforms such as adding justices to the court, or “packing the court,” as it is derisively termed, is antithetical to the rule of law, and injects politics into judicial decisionmaking. Still others will argue, based on history, that even runaway Supreme Courts right themselves, without the intervention of the other two branches.

To remain sanguine about a runaway court, however, is to deny the very real and profound damage that such a court can do to the course of our democracy. With such an approach, we diminish visibility of the suffering of the victims of such a court’s careless regard for the effects of its decisionmaking.

A Supreme Court that is unfettered, “riding high, wide and handsome,” as legendary Harvard law professor Thomas Reed Powell once described the unrestrained and hyperaggressive majority on the court that thwarted the early efforts of President Franklin Roosevelt’s New Deal agenda, has the power to frustrate the democratic ideals of our nation for generations. Roosevelt responded robustly, making clear his plan to “pack the Court” with new justices, and calling on Congress to fashion legislation that would allow him to do so. After first defying the threat, defections from and retirements by members of the conservative majority on the court ultimately allowed the “court packing” plan to die a natural death. This was the “switch in time that saved nine.”

But there is a more disturbing history of unbridled and reckless Supreme Court action that must also guide our understanding. Reconstruction’s demise is often thought to have been hastened by the contested presidential election of 1876, in which the Hayes-Tilden Compromise included an agreement to remove the last of the federal troops from the South, leaving freedmen and women to their own devices with a hostile white population. But although the Hayes-Tilden Compromise played an important role in ending Reconstruction, it was the Supreme Court that most powerfully derailed the post-Reconstruction promise of racial equality and democracy: first defenestrating the privileges and immunities clause in the 14^th Amendment in the Slaughterhouse Cases in 1873, then severely restricting congressional acts passed to protect newly freed Black people from Klan violence in U.S. v. Cruikshank. The court closed out the 19^th century by striking down the 1875 Civil Rights Act designed to end discrimination in public accommodations in the Civil Rights Cases in 1883, and finally by upholding the constitutionality of state-sanctioned racial apartheid in the notorious Plessy v. Ferguson ruling in 1896.

The consequences of these decisions were devastating. More than 5,000 men and women were lynched between 1880 and 1940, with the tool of federal prosecution rendered powerless by the court. Discrimination and legal apartheid kept Black people from economic opportunity, relegating most to sharecropping and domestic work. Denied equal education—and in many places denied any education—and stripped of the ability to amass political power, Black people were rendered second-class citizens in a system of legal apartheid that rigidly controlled life in half the country.

It would be 60 years before the Supreme Court reversed Plessy in Brown v. Board of Education in 1954, and nearly 100 years before Civil Rights Act of 1964 revived the spirit of the Civil Rights Act of 1875. But the effects of the court’s decisions disabling the promise of the 14^th Amendment continues to resonate in the lives of Black Americans today.

Moreover, we must remember that it was not only Black people who suffered as a result of the arrogant and reckless post-Reconstruction Supreme Court. The court snuffed out the promise of the 14^th Amendment and in so doing rendered our nation, once again, a democracy in name only. The mid-20^th-century Civil Rights Movement—the courageous activism and moral power of ordinary people—and the corrective action of Congress, sustained by the Warren court, allowed our nation to at least credibly claim the mantle of democracy—imperfect and struggling—but closer to the ideal of democracy than we had ever been in our history. But in telling the story of that movement, we must never forget that the Reconstruction Supreme Court derailed our democracy for nearly a century, and that tens of millions of Americans suffered, and that their children and grandchildren were denied equal opportunities as a result.

We may be in the midst of a similar democratic derailment.

The danger to our democracy is real and palpable. A majority of Americans now believe that the Supreme Court puts “ideology over impartiality.” The approval rating of the court is the lowest it has been in history. For litigators, there is little predictability in what precedents still count. The court announces new standards and doctrines to suit the circ*mstances and the ideology of a majority of its justices. Trial judges are left without guideposts to apply these new and often inconsistently applied standards. The law is truly what the Supreme Court says it is.

It matters, of course, that this dramatic exercise of power has been undertaken during a period in which the court is facing the biggest ethical scandal in more than 100 years. Given the belligerence of this court, it seems safe to say that there will be no “switch in time” of self-moderation.

Our history shows us the damage that a runaway Supreme Court can impose on our democracy. Congress is under no obligation to acquiesce to this inevitability. Congress has the power to impose significant restrictions on the court’s activities, and has the power to expand the court. Of course any actions it takes must fall well within the confines of the Constitution. The proposals suggested by the president should be examined in that context.

This reform opportunity makes it clearer than ever: The Supreme Court and the future of our democracy are on the ballot this year.