On Monday, President Joe Biden used an op-ed in the Washington Post and a speech in Austin, Texas, to lay out a program of reform for the United States Supreme Court. Being a lame duck seems to have liberated the President to tackle an issue that it looked like he was going to evade.
Biden is proposing a constitutional amendment to reverse the Supreme Court’s decision on presidential immunity, the imposition of term limits for Supreme Court Justices, and the creation of a binding ethics code to govern their conduct. The President is building on work of a commission that he put together in 2021 to review and consider various proposals for reform and institutional change in the Supreme Court.
But it is late in the game for him to do so and the prospects of success for any of these proposals is remote at best. At the end of the day, as ambitious as those ideas are, Biden stopped short, as he has throughout his career, of embracing Court packing, the most far-reaching response to the crisis in the Supreme Court and the threat its MAGA majority now poses to democracy and the rule of law.
Even so, according to a report in The Daily Wire, House Speaker Mike Johnson “excoriated the proposed changes to the Supreme Court that President Joe Biden unveiled on Monday.” Johnson promised that they would be “dead on arrival” in the House of Representatives.
And he upped the ante in a post on X.
He labeled Biden’s proposals as radical and predicted that they 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.” He accused the President and congressional Democrats of carrying out “ongoing efforts to delegitimize the Supreme Court.”
He went on to say that it is “telling that Democrats want to change the system that has guided our nation since its founding simply because they disagree with some of the Court’s recent decisions.
On learning of Johnson’s remarks when he arrived in Austin, Biden displayed his annoyance and responded that the Speaker himself is “dead on arrival.” Asked earlier why he wants to reform the Supreme Court Biden said only “I’m reforming the Supreme Court because it needs to be reformed. That’s why.”
But in his remarks in Austin, Texas Biden laid out his reasons at great length and with a more partisan tilt. He went beyond what he said in his op-ed to link his court reform proposals with the ideological agenda laid out by the Heritage Foundation’s Project 2025.
After praising the civil rights record of former President Lyndon Baines Johnson, Biden observed that the authors of Project 2025 are “planning an onslaught against civil rights in America.” He called Project 2025 an important part of the “extreme MAGA movement.”
He repeatedly accused the current Supreme Court of being “radical” and of being beholden to a sinister, right-wing conspiracy working to turn the clock back on rights and protections that Americans have come to rely on. “The Court,” Biden charged, “is being used to weaponize an extreme and unchecked agenda.”
Biden singled out Trump v. United States for special condemnation. “It will allow the president to violate their oath, flout the law and face no consequences.” But he went on to note that “The Court is mired in a crisis of ethics.”
Biden’s explanation for that crisis focused on politics.
It is the result, Biden argued, “of a decades long effort to reshape the judiciary.” This effort has had purely partisan purposes.
It has, the President explained, left the Court in a compromised position.
Leaving little to the imagination, Biden told his Texas audience that “the Supreme Court is now “backed by shadow special interests that also support Project 2025.”
Here Biden is following in the footsteps of Rhode Island’s Democratic Senator Sheldon Whitehouse. Long before Biden’s conversion to the cause of court reform, Whitehouse had been sounding the alarm about dark influences on the Supreme Court.
For example, in 2019, Whitehouse filed an amicus brief in a case about New York City’s restrictions on transporting handguns outside city limits. The brief argued that the Court should not have accepted the case and offered a theory about why it did.
It described a “multimillion-dollar advertising campaign to shape this Court’s composition, no less, and an industrial-strength influence campaign aimed at this Court. Indeed, petitioners and their allies have made perfectly clear that they seek a partner in a ‘project’ to expand the Second Amendment and thwart gun safety regulations.”
The brief highlighted what it called an “ominous pattern—a pattern of persistent efforts by large anonymous forces to influence the Court. The anonymous funding of the Federalist Society’s ‘insourced’ judicial selection effort; the anonymous funding of the Judicial Crisis Network’s judicial confirmation campaigns; the anonymous funding of the strategic litigation shops that bring so many cases behind ‘plaintiffs of convenience’; the anonymous funding of the amicus armada….”
It claimed that those forces “have secured favorable results on behalf of “big funders, corporate influencers, and the political base of the Republican party.” Whitehouse’s brief concluded, “The Supreme Court is not well” and offered the following, ominous warning: Change direction, before the “public demands” that Congress dramatically “restructure” the Court.
Five years later, Biden has finally joined the fray.
But note that his proposals for reform stop short of calling for an expansion of the number of Justices. That idea to such stalwart progressives as Rep. Alexandria Ocasio-Cortez of New York, Rep. Ilhan Omar of Minnesota, and Sen. Ed Markey of Massachusetts.
As CNN notes, “Biden has long opposed Supreme Court reform. In 1983, as a senator, Biden called Franklin D. Roosevelt’s plan to place term limits on older justices and expand the size of the court ‘boneheaded’…although Congress has made the court larger and smaller multiple times.”
During the 2020 primary campaign, CNN says, Biden “was a voice against calls to reform the court, arguing that adding or subtracting justices would ruin its credibility. Instead, he promised to commission a panel to explore the issue.”
He did and said almost nothing when the commission issued its report in 2021.
In 2022, even after the Supreme Court overturned Roe v. Wade, Biden continued to oppose Court packing. As his press secretary, Karine Jean-Pierre told reporters, “That is something that the president does not agree with…. That is not something that he wants to do.”
Responding to Biden’s new proposals, Speaker Johnson warned that Democrats’ calls to “expand and pack” the Supreme Court “will soon resume.” He may or may not be right in that prediction.
But Joe Biden will not be leading that effort.
He has come a long way in finally embracing the reforms he proposed on Monday, but Court packing remains for him a bridge too far.
