Democrats May Have a Real Chance to Reform the Supreme Court

The summer of reversals for President Joe Biden continued in dramatic form on Monday as he announced that he now supports sweeping Supreme Court reform. In an op-ed for the Washington Post , Biden pushed 18-year term limits and a binding ethics code on Supreme Court justices — after a long career spent opposing such measures — as well as a constitutional amendment overturning the court’s recent decision granting presidents immunity from criminal prosecution.

Is it too little too late?

After all, Biden is now a lame-duck president, and he faces a Republican-held House that won’t go anywhere near these proposals. Even when Democrats had full control of Washington in Biden’s first two years as president, the party shied away from Supreme Court reform — thanks in significant part to the ambivalence and intransigence of Biden himself.

In fact, as the Supreme Court was issuing the final opinions of yet another controversial term last month, I began surveying the broad community of Supreme Court reform advocates both in and outside of Congress and found real frustration with the White House’s inaction.

“I’ll just agree with you that this has not been a priority for them,” Sen. Sheldon Whitehouse (D-R.I.), a leading Democratic proponent of Supreme Court reform, told me.

“I think it would help a whole hell of a lot,” Sarah Turberville, the director of the Constitution Project at the nonprofit Project on Government Oversight, said of further presidential engagement.

And then came the news that Biden would be endorsing proposals to overhaul the court amid his last gasp effort to hold on as the Democratic presidential nominee, followed a few days later by his decision to step aside.

Now, despite outward appearances and a challenging political terrain, the path to Supreme Court reform is beginning to take shape. Based on interviews on and off the Hill, there is a rough consensus and strategy that could actually lead Democrats to embrace Biden’s stance and act on the court — if they can win in November.

For starters, there is a clear political logic to Biden’s three-part proposal. Term limits and ethics reform have the most support among Democrats and court reform advocates, and they are less politically controversial than adding seats to the court. Despite some lingering enthusiasm on the left for adding justices, almost no one I spoke with suggested that approach.

As for Biden’s proposed constitutional amendment on presidential immunity, that idea may not be going anywhere as a practical matter, but it highlights one of the court’s most egregious decisions and also ties the court to Donald Trump, who, of course, appointed three of the six justices who bailed him out in that decision.

Ultimately, the electoral scenario that reform advocates need is a Democratic trifecta in the fall — control of the White House and both houses of Congress.

It’s “the only practical way” to pass major legislation in the area, said Rep. Hank Johnson (D-Ga.), who leads a group of Democratic House members focused on court reform. Republicans who have been racking up major policy victories at the court, he noted, “don’t want to change the current system.”

Whitehouse agreed, adding, “We would need to find our way around a Republican filibuster.” Currently 60 votes are needed in the Senate to pass most pieces of legislation, and a handful of Democratic senators have so far been reluctant to blow up those rules.

Needless to say, obtaining such a Democratic trifecta in November will not be easy for the party, but despite the considerable electoral and political obstacles, there may now be more public and political momentum for Supreme Court reform than at any point in recent history.

The court’s public approval rating has hovered near an all-time low — roughly 40 percent — for several years now, and there are signs that things have recently gotten even worse.

The court’s approval hit a record low — just 38 percent — in a Fox News poll that was conducted after the court granted Trump partial criminal immunity in early July for allegedly trying to steal the 2020 presidential election. That represented a 20-point drop in approval in the same poll from an all-time high of 58 percent in March 2017 — which just so happened to precede the confirmation of Trump’s three appointees.

More than 75 percent of respondents in the Fox poll — including a large majority of Republicans — also said that they support 18-year term limits for the justices. Even assuming that GOP support softens if — or when — Republican politicians mount a serious counter-offensive, the figures are undeniably striking at a time when Americans are hard-pressed to find major policy issues that they largely agree on.

It is not hard to locate the source of Americans’ widespread frustration. The court, of course, has been wracked by a series of serious ethical controversies associated with Republican appointees Clarence Thomas and Samuel Alito . But as notable and widely covered as those episodes have been, the much bigger problem for the court’s public and political standing has been its jurisprudence — in particular, the cascade of politically charged opinions that have been issued by the Republican’s six appointees in recent years that very neatly align with the political priorities and imperatives of the Republican Party.

In the last few years, the six Republican-appointed justices on the court overturned the right to an abortion , made it even harder to pass gun-control legislation , invalidated affirmative action and threw out a major component of Biden’s student loan forgiveness program, one of his signature domestic policy initiatives .

This year alone, the justices overturned a ban on so-called bump stocks on semi-automatic rifles. They made it even easier to engage in partisan and racial gerrymandering . They significantly undercut the federal government’s ability to enforce federal laws and regulations through its agencies and overturned a decades-old judicial doctrine that required courts to defer to agencies when interpreting ambiguous federal laws. And, of course, they handed Trump a major political and legal gift in the form of their immunity ruling.

All of these decisions came in the form of 6-3 opinions in which the Republican-appointed justices comprised the majority. And all of them were savaged by critics as emblematic of a Supreme Court that has gone off the rails.

“This recent term has been convincing a lot more people — a lot of Americans but also a lot more advocates and a lot more people in Congress — that this is really a crisis and something needs to be done,” said Noah Bookbinder, the president of the liberal watchdog group Citizens for Responsibility and Ethics in Washington.

We can apparently now count Biden among them despite his opposition to Supreme Court reform for most of his presidential term.

Biden has consistently criticized the court’s rulings while in office, but until now, his most significant foray into the subject of structural reform was the creation of a commission in 2021 to examine ideas in the area. A classic kick-the-can maneuver in official Washington, the commission produced a lengthy, inconclusive and ponderous report that was promptly shelved by the Biden administration .

With Biden’s reversal and Vice President Kamala Harris now at the top of the Democrats’ presidential ticket, there is cautious optimism among reform advocates that the dynamics might change if she is elected.

Not only did Harris immediately endorse Biden’s proposal on Monday, but she expressed interest in Supreme Court reform back in 2019, when she was running for the Democratic presidential nomination. “We are on the verge of a crisis of confidence in the Supreme Court,” she said at the time . “We have to take this challenge head on, and everything is on the table to do that.”

In the days and weeks ahead, we will get a better sense of how Harris intends to approach the issue. Among the most pressing questions: Will she make Supreme Court reform a major issue in the campaign against Trump? And if elected, will she expend political capital to support the sorts of measures — either ending the filibuster in the Senate or crafting some sort of exception — that would likely be necessary to pass reform legislation even if Democrats retain control of the Senate and retake the House in the fall?

If Harris does win in November and Democrats emerge with control of both houses in Congress, she would be well positioned to lead the push for reform. Reform advocates in and around Capitol Hill signaled in interviews that they are already thinking through possible legislative strategy.

Democrats would first likely tee up an ethics reform package to soften the political ground and, if successful, then move on to passing legislation imposing term limits on the justices. As Whitehouse and others acknowledged, Democrats would likely have to confront the filibuster in the Senate if they want to get anything major passed.

“Rules reform will be absolutely critical to getting anything done here,” said Alex Aronson, the co-founder and executive director of the group Court Accountability and a former aide to Whitehouse. “There is no progress for democracy or for any big-ticket progressive priorities,” he added, under the current filibuster rules.

Advocates have broadly coalesced around term limits — as opposed to adding more justices to the court — because it is a less politically brute and polarizing reform measure, one that would alter the composition of the court over time in a way that would be democratically responsive to voters. It would not provide the quick fix that many people, particularly on the left, would like to see, but a quick fix does not appear to be politically viable anytime soon.

Even successfully moving legislation that targets the court would not be the end of the fight. There would also probably be constitutional challenges to anything that passes — challenges that would likely end up before the Supreme Court itself — but it is far too soon to rule out any proposals on constitutional grounds. After all, plenty of constitutional scholars and lawmakers from both parties have expressed interest in Supreme Court term limits.

There would also be an unstated but undeniable element of legal realpolitik at play as well: If a court controlled by Republican appointees were to overturn a law imposing term limits designed to rein them in, that could itself prompt a constitutional crisis unlike any we have seen in our lifetimes. Would they really do it? They might, but that won’t stop the effort.

In the meantime, some reform advocates see an opportunity for Harris and Democrats to try to galvanize support ahead of the election.

“The Supreme Court is a winning issue,” Gabe Roth, executive director of the advocacy group Fix the Court, told me recently. “We learned that in 2022,” he said, when Democrats across the country campaigned on abortion rights after the court overruled Roe in the Dobbs decision.

But it’s most important, according to Michael Podhorzer, the onetime AFL-CIO political director, that Democrats focus on substance rather than process. “Running against the decisions the Republican nominees on the court have rammed through — most notably Dobbs — will be much more popular than on a process-centric argument that the court needs to be reformed,” he said.

The issue would seem to be a natural fit for Harris, who has made reproductive rights and the fallout from Dobbs a major focus as vice president. As we approach the Democratic convention in Chicago in mid-August and the final stretch of this year’s presidential election, she may be able to put the Supreme Court on the campaign agenda in a way that Biden never could, or never would.