Joe Biden is no longer running for reelection, but he’s not going away quietly, either. On Monday, he launched a broadside against the independence of a separate branch of government, demanding radical reform (read: destruction) of the Supreme Court as we’ve known it since the Founding. Vice President Kamala Harris immediately announced her support for the plan. In thrusting this attack on the independence of the judiciary into the middle of the 2024 presidential contest, Biden may think he is helping his party’s electoral fortunes. He is wrong, and he will come to regret it.
Biden launched his attack while speaking at the Lyndon Johnson Presidential Library in Austin, Texas, at an event to commemorate enactment of the Civil Rights Act 60 years ago. Justifying his assault, he referred to “extreme opinions that the Supreme Court has handed down” and declared, “the Court is being used to weaponize an extreme and unchecked agenda,” thereby making absolutely clear that he’s only making his reform proposal because he isn’t happy with the way the current Court is deciding the cases before it.
After listing a series of recent Supreme Court rulings he opposed – beginning with a ruling in the 2013 case of Shelby County, and then continuing on to the 2022 Dobbs case (which overturned Roe v. Wade), and the ruling earlier this month regarding presidential immunity for official acts – Biden demanded what he called “three bold reforms” – first, a constitutional amendment called the “No One Is Above the Law” amendment, to overturn the Court’s recent ruling in Trump v. United States, in which the Court ruled that a president enjoys some immunity from criminal prosecution for official acts taken while in office; second, the imposition of 18-year term limits for Supreme Court justices, combined with a provision that would allow every president to appoint two justices to the Court, accomplished via legislation; and, third, a “binding code of conduct for the Supreme Court,” to be overseen by an outside entity of some sort – possibly even a group of inferior judges – even though the Supreme Court already has an ethics code.
Let’s dispense with consideration of the proposed Constitutional amendment. It’s going nowhere, fast, and, most likely, was only included because it offered Biden a chance to insert the name “Trump” into his assault, thereby further energizing the anti-Trump grassroots base of his party. And let’s dispense, too, with consideration of a new ethics code, so we can get right to the crux of the matter.
As for the remaining proposal – term limits for the justices – that, too, likely requires a Constitutional amendment. Biden seems to think it does not require an amendment, and his proposal would eliminate the checks and balances between the three branches and really is not about term limits at all.
Let’s call it what it is – court-packing – because what he’s really proposing is an only slightly masked version of President Franklin Delano Roosevelt’s original 1937 court-packing plan. Like Biden, Roosevelt was frustrated by the justices of the Supreme Court and their rulings striking down various aspects of his New Deal agenda. He wanted to find a way around them – so he proposed to a Congress that had more Democrats in the Senate than at any time before or since an expansion of the Court, in a scheme that would allow him to appoint as many as six new justices, to turn the Court’s anti-New Deal majority into a minority.
Within weeks, even with Democrats outnumbering Republicans in the Senate by 76-16, Roosevelt’s plan was rejected.
Biden’s proposal is even worse: Roosevelt never proposed ending, or even shortening, the service of the sitting justices whose rulings he opposed. He merely proposed diluting their strength by adding new justices around them. Biden, on the other hand, is directly attacking the sitting justices whose rulings he opposes, calling for their service to be ended before it otherwise would.
And by structuring a new framework in which each presidential term would carry with it the right to name two new justices to the Court, the Court’s membership would become more politicized, not less – seats on the Court would become spoils of political battle, quadrennial prizes for the victorious presidential campaign in a way they are not now.
Perhaps it’s only a coincidence that, were Biden’s plan to be enacted, the first justice whose service would end would be Justice Clarence Thomas, who was confirmed at a time when Biden sat as chairman of the Judiciary Committee and voted against Thomas, and whose abruptly ended service would be followed immediately by similarly abrupt terminations for Chief Justice John Roberts and Justice Samuel Alito.
Biden knows better. As a U.S. senator for 36 years – including service as both chairman and ranking member of the Judiciary Committee – he knows that what he is proposing is not only unconstitutional, it would destroy the judicial independence so carefully constructed by our Founders.
In 2005, Biden spoke of Roosevelt’s court-packing plan. On the Senate floor, Biden reminded his colleagues, “’Power corrupts, and absolute power corrupts absolutely,’” before denouncing Roosevelt’s court-packing plan as a “power grab.”
Biden was right to oppose court-packing two decades ago. He is wrong to propose it now. He thinks that because he is not running for reelection, he can make proposals with little or no public support. Voters will have a chance to show him what they think of the importance of an independent judiciary when they cast their vote in the fall elections.