What to know about President Biden’s election-year proposals to change the Supreme Court

WASHINGTON – President Joe Biden is using his final six months in office to push sweeping changes to the Supreme Court and a constitutional amendment to ensure that presidents are not immune from criminal prosecution.

Although he’s no longer a candidate himself, Biden is making this a big issue for his final months as president − and handing Vice President Kamala Harris, the new presumptive Democratic nominee, a hot-button topic to hit on the campaign trail and energize voters who are increasingly skeptical of the highest court in the land.

But don’t expect Biden to take the step that the left-wing flank of his party wants: a bigger Supreme Court packed with Democratic picks to balance out the conservative supermajority that overturned Roe v. Wade, scaled back gun control laws, and raised questions about the future of same-sex marriage.

Here is what to expect from Biden’s Supreme Court overhaul package.

Can Biden do anything to take away Supreme Court power?

If you’re catching up with Biden’s plan, remember that he didn’t endorse a proposal that has long been on the liberal wishlist: expanding the size of the nine-member Supreme Court. 

None of his proposals − which Harris quickly endorsed − are likely to pass in a divided Congress. Yet Biden is igniting what could be a defining issue in the 2024 campaign while setting off a debate that will last much longer.

It’s also a salvo by the Democratic president amid an increasingly tense relationship with a 6-3 conservative Supreme Court that has angered the left with a recent decision overturning the decision that made abortion legal nationwide, ending affirmative action in college admissions, blocking Biden’s action to cancel student loan debt for college students and limiting federal authority to combat climate change.

A constitutional amendment on presidential immunity

Biden’s constitutional amendment on presidential immunity makes clear that “no President is above the law or immune from prosecution for crimes committed while in office,” according to the White House.

It’s a direct response to the Supreme Court’s ruling that former President Donald Trump is protected from criminal prosecution for actions taken in his “official” capacity as president. The decision significantly blew the Justice Department’s case against Trump over efforts to overturn the 2020 election.

As an amendment to the Constitution, the measure would need support from two-thirds of the House and Senate for approval, making it dead on arrival without support from Republicans.

Term limits for justices

If you’re appointed to the Supreme Court and approved by the Senate, you’ve got job security for life. Biden is urging Congress to end lifetime seats for the Supreme Court’s nine justices with term limits that would mean future justices could not serve beyond 18 years.

Under the change, the president would appoint a new justice every two years to replace the justice whose term ends.

It would mark a seismic change for an institution that was founded on giving individual justices enormous power though lifetime appointments. Term limits would mean the court’s current 6-3 conservative majority could change composition significantly sooner than if justices served out their lifetime terms.

“Term limits would help ensure that the court’s membership changes with some regularity,” Biden wrote in a Washington Post op-ed announcing his endorsement. “That would make timing for court nominations more predictable and less arbitrary. It would reduce the chance that any single presidency radically alters the makeup of the court for generations to come.”

A code of conduct for the Supreme Court?

A third proposal is for Congress to pass “binding, enforceable” conduct and ethics rules for justices.

It 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 proposed ethics changes follow reports last year that detailed lavish travel that Thomas accepted from GOP donor Harlan Crow, as well as revelations that Justice Samuel Alito flew to Alaska for a fishing trip on a private jet in 2008 that belonged to a hedge fund manager who repeatedly brought cases before the high court.

More recently, Alito has faced scrutiny from Democrats following news reports that two controversial flags that are symbols in right-wing circles were flown at his family residences.

“President Biden and I strongly believe that the American people must have confidence in the Supreme Court,” Harris, the presumptive Democratic nominee, said in a statement. “Yet today, there is a clear crisis of confidence facing the Supreme Court as its fairness has been called into question after numerous ethics scandals and decision after decision overturning long-standing precedent.

Biden says no to expanding court

Some progressives have long pushed for Biden to get behind a proposal to expand the size of the Supreme Court as a way to quickly eradicate conservatives’ current hold.

But Biden isn’t going that far.

The issue of “court packing” was explored by a 36-member commission Biden appointed after he entered office in 2021 to explore structural changes to the Supreme Court. But the panel of legal experts warned of “considerable drawbacks” in a lengthy report issued later that year.

In contrast, the panel was more bullish on the idea of 18-year term limits for justices.

Playing to Democratic voters

Biden was already planning to get behind a Supreme Court overhaul before he dropped out of the election after resisting structural changes for his first three years in office.

It is a way to energize the progressive flank of his party for the November election after liberals have watched in dismay as the Supreme Court has moved sharply to the right.

Biden and Democrats have become increasingly vocal with their criticism of the court, which has overturned many long-held precedents in recent years − most notably upending Roe v. Wade by ruling that there is no constitutional right to an abortion.

Biden and Harris have aggressively blamed Trump for the overturning of Roe, reminding voters repeatedly of his three Supreme Court justice appointments that swung the court.

Now, with less than 100 days until Election Day, Harris can point to a plan to reshape the Supreme Court.

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