Biden considering proposals to reform Supreme Court

Washington — President Biden is considering a series of proposals to reform the Supreme Court, including measures to establish term limits for justices and an enforceable ethics code, CBS News has learned.

Any plans would require approval from Congress. The Washington Post was first to report Mr. Biden’s expected support for changes to the Supreme Court.

The president revealed in a call with the Congressional Progressive Caucus on Saturday that he’s been working with experts on proposals to reform the nation’s highest court to be announced soon, a source familiar with the call confirmed to CBS News. Mr. Biden did not tell the group what his plans are, but his willingness to engage on the issue marks a shift for the president, who led the Judiciary Committee while serving in the Senate.

“It’s not hyperbole to suggest Trump is literally an existential threat, an existential threat to the very Constitution of democracy we, we say we care about,” Mr. Biden told the progressive lawmakers. “And I mean, if this guy wins, he’s not, and now, especially with that Supreme Court giving him the kind of breadth of — I don’t need to get into the Supreme Court right now — anyway, but I need your help. I need your advice, and I want to make sure we have a closer working relationship, because we’re in this together.”

The president came under pressure from liberal groups during the 2020 election to endorse reforms to the Supreme Court, including adding more seats to its current nine. Mr. Biden declined to back so-called court-packing and instead created a commission to study proposals to change the high court, which approved and submitted its final report to him in December 2021.

The commission did not recommend structural changes, but endorsed adoption of a code of ethics for Supreme Court justices. On the issue of term limits, the bipartisan panel examined 12- and 18-year terms, but warned that any law imposing such limits would likely be challenged in federal court.

Mr. Biden has not publicly addressed the commission’s findings, even as Democrats in Congress called for a legislative response to ethics issues at the Supreme Court. The court adopted its own code of conduct in November amid the pressure to enact ethics rules, but it does not contain an enforcement mechanism.

The Supreme Court, which has a 6-3 conservative majority, has come under scrutiny in recent weeks as it handed down a slew of high-profile decisions to close out its term. Those rulings include reversing a 40-year-old decision to curtail federal regulatory power, invalidating a Trump-era ban on bump stock devices for semiautomatic rifles, and finding that former presidents are entitled to immunity from federal prosecution for official acts taken while in office. 

Two years ago, the high court dismantled the constitutional right to abortion, and last year, it rejected affirmative action for higher education.

The landmark decision on presidential immunity has significant ramifications for the case brought against former President Donald Trump by special counsel Jack Smith and further delays the start of a criminal trial in Washington, D.C. The former president has pleaded not guilty to four federal charges.

Mr. Biden criticized the decision, saying it means “any president, including Donald Trump, will now be free to ignore the law.” 

The rulings came amid a year-long investigation by Senate Democrats into the ethics practices at the Supreme Court, launched after the news outlet ProPublica revealed Justice Clarence Thomas had accepted luxury travel from GOP megadonor Harlan Crow and did not disclose the trips on his annual financial disclosure forms.

Thomas said he and Crow have been friends for more than two decades, and the justice did not believe he was required to report the travel under guidelines governing personal hospitality. He pledged to comply with new rules rolled out by the Judicial Conference last year and listed additional travel provided by Crow on his latest disclosure forms.

Justice Samuel Alito has also been criticized by Democrats on Capitol Hill for flags flown outside his Virginia residence and New Jersey vacation home in recent years. The first, an upside-down American flag, was flown outside Alito’s Virginia house in January 2021, and the second, an “Appeal to Heaven” flag, was displayed outside his New Jersey residence in the summer of 2023.

Both types of flags were carried by rioters who breached the U.S. Capitol building on Jan. 6, 2021, but Alito has said he was not involved in the displays outside his homes. Instead, the justice told congressional Democrats in May that his wife flew the two flags, and neither of them knew of the meanings ascribed to them in recent years.

Still, the revelations about Alito and Thomas, coupled with the Supreme Court’s decisions on politically charged issues, have ramped up criticism of the court. Rep Alexandria Ocasio-Cortez introduced articles of impeachment against the two conservative justices last week, though they’re all-but-certain to die in the Republican-led House. 

Democratic Sens. Sheldon Whitehouse and Ron Wyden have separately asked Attorney General Merrick Garland to name a special counsel to investigate whether Thomas violated any federal tax or ethics laws when he accepted travel and lodging from Crow.

Progressive groups are also hoping to use the Supreme Court to motivate voters to support Mr. Biden, the presumptive Democratic presidential nominee, in November and are pouring millions of dollars into campaigns that aim to educate voters about the impact the next president will have on the high court.

Efforts are focused not only at helping Democrats hold onto the White House, but also retaining control of the Senate and flipping the House, currently led by Republicans. Total control by Democrats could clear the way for Congress to enact proposals reforming the court. Legislation requires 60 votes to advance in the Senate.

One of those bills, from Democratic Rep. Hank Johnson of Georgia, would impose 18-year term limits on Supreme Court justices and establish nominations in the first and third years after a presidential election. Current justices would be required to take senior status, a form of semi-retirement, in order of length of service as new justices join the court. Under that proposal, Thomas, appointed in 1991, and Chief Justice John Roberts, confirmed in 2005, would be the first and second members required to retire.