Washington, DC – Calls to reform the United States Supreme Court have been echoing through the political ecosystem for decades, resounding amid scandal and scrutiny over the institution’s perceived political bent.
In the last year alone, two justices were accused of accepting luxury vacations from Republican donors. One was caught flying political flags outside his home — one of many revelations that has led critics to question the impartiality of the conservative-dominated court.
But President Joe Biden’s decision on Monday to propose sweeping reforms to the court marks a turning point, according to experts.
Biden had previously distanced himself from such appeals to overhaul the court. This week’s decision, however, to publicly embrace a slate of reforms signals a shift in mainstream politics.
“Joe Biden is not a radical. He is an institutionalist,” said Devon Ombres, the senior director of courts and legal reform at the Center for American Progress (CAP), an organisation that has long advocated for changes to the court.
Ombres said the appeal from Biden can be seen as a canary in the coal mine, showing how urgent reforms have become.
“For him to reach this point, I think, shows that the current iteration of the Supreme Court has gone beyond the pale of what we thought was possible.”
A turning point
During his 36 years in Congress, Biden resisted such reforms in his role as the top Democrat on the Senate Judiciary Committee.
He also distanced himself from attempts to reimagine the court during the 2020 Democratic primary season, when he emerged as the party’s presidential nominee.
In 2021, as president, Biden signed an executive order creating a commission to study potential changes to the court. But in the two and a half years since the commission issued its final report, Biden has remained largely silent on its findings.
That changed on Monday. In announcing his proposed reforms, Biden said change was needed to restore public faith in the Supreme Court, an institution tasked with making final determinations on US law and constitutional rights.
“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 a Washington Post editorial, acknowledging the court’s conservative lurch and the ethics scandals of the past year.
Biden’s push comes in the midst of a critical election year. Vice President Kamala Harris is seeking the presidency as Biden’s heir apparent, facing off against the Republican challenger Donald Trump, and control of Congress is up for grabs.
Thomas Moylan Keck, a constitutional law and politics professor at Syracuse University, doubts Biden’s proposal will pass in the current deeply divided Congress.
But he pointed out that it could create an opening for change later on. Harris has already said she backs the proposals.
“The point of it, in the short term, is symbolic,” Keck told Al Jazeera, emphasising Biden’s public image as a “moderate Democrat and institutionalist”.
“But Biden now getting on board, in theory, helps Democratic members of Congress and Democratic supporters in the electorate get used to these ideas.”
Biden’s show of support could be helpful if the Democrats win big this November, he added, as it might pave the way for the party to enact the reforms.
“If and when Democrats do have control of both houses of Congress and the White House at the same time, maybe then they’ll be ready to run with at least some of it.”
What does Biden’s proposal say?
Biden has outlined three specific areas of reform in his proposal.
First, he called for term limits on Supreme Court justices, as they currently serve for life, barring voluntary resignation or impeachment.
“The United States is the only major constitutional democracy that gives lifetime seats to its high court,” Biden wrote in the Washington Post.
Under Biden’s proposals, each justice would serve for only 18 years maximum, with a president appointing a new justice every two years.
That would “make timing for court nominations more predictable and less arbitrary”, Biden explained.
His second proposal was for Congress to pass a standard — and enforceable — code of conduct for Supreme Court justices. That would require them “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”, he wrote.
Those new guardrails would supersede the self-enforced ethics code the Supreme Court adopted last year — a measure government oversight groups described as flimsy.
The third proposal calls for a constitutional amendment that would undo a controversial decision by the court that grants US presidents wide immunity from criminal prosecution.
Biden dubbed the proposed change the “No One Is Above the Law Amendment”. He cited former President Trump’s alleged role in the storming of the US Capitol on January 6, 2021, as an example of where such an amendment could be used.
“If a future president incites a violent mob to storm the Capitol and stop the peaceful transfer of power — like we saw on January 6, 2021 — there may be no legal consequences,” he wrote.
But experts told Al Jazeera these three proposals are unlikely to succeed, at least in the near term.
Constitutional amendments, for example, are extremely rare in the US. They must be proposed with two-thirds support of the US House and Senate and then be approved by three-fourths of all 50 state legislatures across the country.
The White House has also offered only broad frameworks for the proposals, with details remaining unclear. Notably, the suggestions focus on reforms that already have wide public support, while avoiding more fraught efforts, such as proposals to expand the number of justices on the court.
Why call for reform now?
The concept of reforming the Supreme Court has kicked around for years in US political and legal circles — and has at times gained bipartisan support. But recent developments have shifted the push for reform into overdrive.
The ideological makeup of the court swiftly transformed during Trump’s presidency from 2017 to 2021. Trump — and the Republican-controlled Senate — had the rare opportunity to nominate and confirm three relatively young, staunch conservative justices: Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.
That created a conservative 6-3 supermajority that is expected to define the court for the foreseeable future.
The justices — often split along ideological lines — have since issued a series of landmark rulings. They overturned federal abortion protections, put an end to affirmative action policies in higher education, and recently decided that presidents should enjoy the presumption of immunity for all official acts.
News reports have also detailed luxury travel and gifts lavished on some justices, most notably conservatives Samuel Alito and Clarence Thomas.
Both Alito and Thomas have also faced questions about their wives’ political activities, furthering outcry over the court’s integrity and its ability to weigh cases with impartiality.
Critics also pointed out that Biden’s proposals for the Supreme Court come less than 100 days until the nationwide elections in November. Democrats have made the case publicly that reforming the Supreme Court is a reason to vote for their party.
Speaking to CNN, Senator Elizabeth Warren put it bluntly. “The Supreme Court is on the ballot. And that is a good reason to vote for Kamala Harris and to vote for Democrats in both the Senate and the House,” she said.
Recent Supreme Court decisions — notably on abortion, voting rights and presidential immunity — have already taken centre stage this election season.
What have opponents said?
But Republicans have been quick to blast Biden’s proposals — and they have pledged to ensure their defeat.
Senate Minority Leader Mitch McConnell, for instance, swiftly dismissed Biden’s effort as “unconstitutional”, warning that the reforms, particularly the term limits, would be “dead on arrival” in Congress.
Other critics have gone further, accusing Biden of seeking the changes only because he is ideologically opposed to the current makeup of the court.
Senator Markwayne Mullin of Oklahoma called the reforms a “toxic power grab”. Senator Bill Cassidy of Louisiana, meanwhile, accused Biden of trying to “overthrow the US Constitution because you don’t like the results”.
Even among supporters of reform, there has been pushback over Biden’s announcement.
Writing for the news site The Hill, Chris Truax — a spokesperson for Society for the Rule of Law, a conservative group — argued that, while court reforms are needed, major changes should only be conducted through broad consensus.
“Anything else is dirty pool,” he wrote.
Meanwhile, Democratic Senator Ed Markey, who has long led a push for court reforms, welcomed Biden’s proposals as “important steps”. Still, he said any meaningful reform should include expanding the number of justices on the top court — a measure considered more politically fraught than Biden’s suggestions.
“Only then will Americans be able to look at the Court with respect and reverence, not disgust and despair,” Markey said.
What does this mean for the election?
Public opinion polls, however, indicate voters may be receptive to Biden’s push for reform.
Last year, the Pew Research Center found the court’s approval rating had fallen to its lowest point since 1987. An estimated 54 percent of Americans viewed the court unfavourably. Only 24 percent of Democrats had favourable views of the court in 2023, down from 67 percent just two years earlier.
A survey from the progressive think tank Data for Progress also showed that nearly three-fourths of voters support term limits. That support, it added, crossed party lines, with majorities of Democrats, independents and Republicans backing the reform.
“It pretty clear and consistent across lots of polls that public support for the court itself has been tanking,” Keck, the professor at Syracuse University, said.
“So, in theory, that creates some space for a capable political leader to speak to those concerns.”
For his part, Ombres, the legal reform analyst, noted that it will be hard to predict how the electorate will react to the proposals.
Already, he said, it has been an unconventional election year, with numerous upheavals: Trump faced an assassination attempt and Biden withdrew from the race, all within the last month.
But, he added, policymakers and advocates should seize on the political tailwinds to begin the process of creating a reform package now.
“The brain trusts need to come together and say, ‘This is what we want,’” Ombres said.
