The proposal is a momentous shift for the president, who has long resisted calls to overhaul the Supreme Court.

By Adam Cancryn

07/29/2024 05:30 AM EDT

After slow-walking proposals to modify the Supreme Court for most of his presidency, President Joe Biden will call for major changes to the court on Monday, endorsing term limits for justices and an enforceable code of ethics.

The changes are needed to restore Americans’ faith in the high court, Biden is expected to argue in remarks at the LBJ Presidential Library in Austin, Texas. POLITICO reported on Friday that Biden was set to endorse the proposals.

Biden’s call comes after another controversial term in which the court’s 6-3 conservative majority continued to flex its power, most notably in a decision that significantly weakened the federal criminal case against former President Donald Trump for attempting to overturn the 2020 election. And scandals involving two members of the conservative bloc have amplified scrutiny of the court’s ethics practices.

Biden will also push for a constitutional amendment making clear that presidents are not immune from federal prosecution — a response to the Supreme Court’s July 1 ruling, in the Trump case, that presidents enjoy some immune from prosecution for “official acts” during their time in office.

“What is happening now is not normal, and it undermines the public’s confidence in the court’s decisions, including those impacting personal freedoms,” Biden wrote in an op-ed to be published Monday morning, according to excerpts shared by a White House official. “We now stand in a breach.”

Establishing term limits and a binding ethics code would require congressional approval, leaving little chance that the current divided Congress will take up the proposals this year. And even if Democrats control both chambers after the election, they’re unlikely to have the 60 Senate votes needed to overcome a filibuster.

Creating a constitutional amendment is even more difficult, needing two-thirds support from both chambers of Congress or from a convention called by two-thirds of the states, as well as the approval of three-fourths of state legislatures.

But embracing such ideas alone represents a momentous shift for Biden, and the clearest sign yet of his deepening frustration with a conservative majority that has gutted longstanding precedents and blocked key policy priorities during his presidency.

Biden, a former chair of the Senate Judiciary Committee, had dismissed calls from liberals to support expanding the court during his 2020 campaign. He instead created a commission to study possible changes — but then did not act after its report was published in late 2021.

But in the years since, the Supreme Court eliminated federal abortion rights, made it more difficult for states to regulate guns and struck down Biden’s student-loan forgiveness program. Those were among a flurry of cases decided by the conservative majority that have angered Democrats and hardened the public’s view of the court as an overly partisan entity.

Justices Clarence Thomas and Samuel Alito have been embroiled in personal scandals during that timeframe. Both justices failed to disclose gifts or private flights from Republican donors, and Alito was criticized after revelations that a flag associated with efforts to overturn the 2020 election flew outside his home.

Those developments, Biden plans to argue in his op-ed and Monday afternoon during the speech in Texas, convinced him that reforms are needed to restore trust and accountability to the court.

“The nation was founded on a simple yet profound principle: No one is above the law,” Biden wrote in his op-ed. “Not the president of the United States. Not a justice of the Supreme Court of the United States.”

Last year, under increasing congressional scrutiny, the justices adopted a code of conduct, but it has been criticized for lacking any enforcement mechanism. Last week, Justice Elena Kagan, one of the court’s three liberals, told a judicial conference that it would be better if the code had teeth.

The ethics code favored by Biden would require justices 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. The code would be binding and enforceable, though it was unclear what enforcement mechanism Biden envisions.
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Biden’s term limit proposal would restrict justices to 18 years of active service on the Supreme Court. Presidents would then appoint a new justice every two years under the plan.

That proposal would likely face legal challenges, because the Constitution says justices hold their offices “during good behavior” — a provision long understood as lifetime tenure. Proponents of term limits have argued that Congress could abide by the provision by requiring justices after 18 years to take a form of “senior status” — a role in which they would not serve full-time but could fill in for active justices who were recused from a case.

Biden’s proposed constitutional amendment would make clear that the Constitution doesn’t confer any immunity from federal criminal indictment, trial, conviction or sentencing simply by virtue of serving as president, according to a White House official.