To the Teacher:
This summer, President Joe Biden put forward a proposal for significant reforms to the United States Supreme Court. His proposal would implement a binding ethics code and instate 18-year term limits for judges on the high court.
This lesson consists of two readings on the issue of President Biden’s proposal to reform the Supreme Court. The first reading reviews the binding code of conduct that the White House has proposed, as well as some of the scandals among justices that inspired this proposal. The second reading overviews the structure of the 18-year term limits that the White House has suggested, along with commentary on how such a system might impact the larger democratic process in the country. Questions for discussion follow each reading.
Photo by Fine Photographics on Unsplash
Reading One: Amidst Scandals, Should the Supreme Court Have a Binding Code of Ethics?
This summer, President Joe Biden put forward a proposal for significant reforms to the United States Supreme Court. In a July 2024 article for The Guardian, political correspondents Adam Gabbatt and Lauren Gambino provided an overview of the President’s plan. Gabbatt and Gambino wrote:
Joe Biden unveiled a much-anticipated series of sweeping changes to the US
supreme court, including the introduction of term limits for justices and a constitutional amendment to remove immunity for crimes committed by a president while in office.
The reforms, detailed by the White House, call for limiting a justice’s term on the court to a maximum of 18 years rather than the current lifetime appointment, as well as a binding, enforceable code of ethics and a constitutional amendment that would in effect reverse a Supreme Court decision in July granting former presidents broad immunity from prosecution for actions taken while in office, a decision Donald Trump hailed as a “BIG WIN” amid his legal travails.
“This nation was founded on a simple yet profound principle: No one is above the law. Not the president of the United States. Not a justice on the Supreme Court of the United States,” Biden wrote in a Washington Post op-ed.
[https://www.theguardian.com/us-news/article/2024/jul/29/biden-us-supreme-court-reforms]
The first major component of Biden’s proposal involves an enforceable code of ethics for judges on the Supreme Court. This code would compel justices to disclose financial gifts, remove themselves from cases where they or their spouses have a conflict of interest, and avoid political activity in the public eye. The proposal comes after a series of ethical scandals among judges that have plagued the court.
In a December 2023 article for Salon, staff writer Tatyana Tandanpolie summarized some of the conduct of Supreme Court justices that has drawn controversy, writing: “The U.S. Supreme Court spent much of 2023 embroiled in scandal as a slew of reports exposed the ethical lapses of two of its most senior justices…. A series of ProPublica reports revealed that Justice Clarence Thomas had accepted decades-worth of luxury trips funded by GOP megadonor Harlan Crow and other billionaires, while Crow had purchased Thomas' mother's home in 2014 and paid the tuition of the justice's great-nephew in the mid-2000s. The outlet also found that Justice Samuel Alito had in 2008 accepted a lavish fishing trip paid for by right-wing billionaire Paul Singer.”
Neither justice disclosed these gifts in their relevant financial disclosures, even while billionaire Paul Singer had business before the court. These incidents were just a few of the revelations that the New York Times has described as “potential conflicts of interest.” To address such problems, the White House proposal would instate a mandatory code of ethics. As NPR reported in July:
[Biden] called on Congress to pass binding, enforceable conduct and ethics rules that require justices on the high court 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.
"We need a mandatory code of ethics for the Supreme Court and we need it now," he said….
Biden railed against "undisclosed gifts to justices worth hundreds of thousands of dollars, and wealthy benefactors who have interests before the very court are contributing to, [and] conflicts of interest from those connected to Jan. 6 insurrection."
[https://www.npr.org/2024/07/29/nx-s1-5055094/biden-supreme-court]
If a binding code of ethics were put in place, it is unclear who functions as the enforcer of the policy. Supreme Court justice Elena Kagan has voiced her support for a panel of lower-ranking federal judges to play a role in overseeing such a code of conduct. Another option would be for Congress to function as the enforcer of the code.
While the details of the President’s new ethics rules for the court are still being hammered out, opinion surveys indicate widespread public support for the idea. As NPR reported on August 20th, 2024: “Polls show most Americans are behind reform. According to a July Fox News national survey, approval of the court dropped to a record low of 38 percent. And according to a poll from earlier this month by USA Today and Ipsos, 76 percent of Americans support a binding code of Supreme Court ethics.”
For Discussion:
- How much of the material in this reading was new to you, and how much was already familiar? Do you have any questions about what you read? What personal connections, thoughts, or feelings did you have about what you read?
- According to the reading, what would the newly proposed ethics code for the Supreme Court do?
- As noted in the reading, President Biden wrote in an op-ed, “This nation was founded on a simple yet profound principle: No one is above the law. Not the president of the United States. Not a justice on the Supreme Court of the United States.” How do you interpret this statement? Do you agree or disagree? Why?
- According to the reading, what behavior by the Supreme Court inspired the proposal for a binding code of conduct for its justices?
- Last summer, for the first time in its history, the Supreme Court passed a code of ethics for its judges. However, the code is nonbinding, meaning that the judges can use their own discretion in choosing to follow it and that there is no means of enforcement. Given this newly implemented measure, do you think there is a need for the kind of binding code of ethics that the president has proposed? Why or why not?
- What options does this reading list for who might enforce a binding code of ethics for the Supreme Court? What do you think might be the most appropriate option for enforcement?
Reading Two: Should Supreme Court Judges Have Term Limits?
Another major reform to the Supreme Court that President Biden proposed is a new structure for term limits of judges.
The proposal comes after a series of contentious court rulings in recent years, handed down after former President Trump appointed three justices to create a conservative majority of 6-3 on the Court. A main reason why President Trump was able to appoint three members of the Supreme Court was that Republican Senators had refused to consider a judge nominated by President Obama in 2016. This allowed Trump to nominate an extra judge when he arrived in office the following year.
Currently, judges on the Supreme Court serve lifetime tenures, and vacancies only open up when a justice either resigns or passes away. This makes the opening of seats on the Supreme Court unpredictable, giving some presidents outsized influence in shaping the court for generations. In an article for the Brennan Center for Justice, law professor and former federal appeals court judge Diane P. Wood explained how the alternative system of term limits that President Biden has proposed might establish a more predictable nomination process:
[The] term limits proposal contemplates a regime under which justices would continue to have life tenure and salary protection, but they would participate in the apex appellate work of the Supreme Court for only 18 years…
Two slots on the Court would open up during each four-year presidential term — a system that evens out presidential opportunities to appoint justices. Under the current system, some presidents have been able to appoint numerous justices (four, in Richard Nixon’s case), while others have had no appointments (like Jimmy Carter)....
The sample timeline in [a recent Presidential Commission] report assumes that the term limit law was passed in 2023 (already a bit out of date). The first new active justice would be added that year, expanding the Court to 10. Two years later, it assumes that the Court’s most senior associate justice, Clarence Thomas, retires after serving for 34 years, and that a new active justice is added. The total number thus remains 10. Two years later, the assumption is that the new most senior associate justice, Samuel Alito, retires, and a third active justice is added. Thus it goes, with the Court expanding out to as many as 13 justices (a few more if some of the retirement assumptions prove to be mistaken). As the grandfathered justices leave the Court, it shrinks back to nine members.
Forming the backdrop to the proposal of term limits is a series of controversial rulings from the high court, including a decision to overturn the constitutional right to abortion and the establishment of legal immunity for Presidents for official acts in office. Some of these rulings have overturned long standing legal-precedents, which critics argue is an overstepping of the role a Supreme Court should play in a healthy democracy. As staff writer Hassan Ali Kanu argued in a June 2024 article for The American Prospect:
As a basic matter, the Supreme Court has outsize power to knock down or reshape national policy established by Congress or by the President and executive branch. That’s often what happens when the Court ‘interprets law.’ Sometimes, it can also effectively create national policy, like a robust personal right to firearms, for example. And, in recent years, the Court has had no compunction about flexing or stretching the bounds of its immense practical powers in increasingly brazen ways.
Proponents of term limits for Supreme Court justices argue that these limits could have the effect of more closely aligning the court itself with the country’s democratic process. In a September 2024 guest opinion for The Hill, Matthew Brogdon, Senior Director of the Center for Constitutional Studies at Utah Valley University, listed what he saw as three of the major benefits of the proposed term limits. Brogdon wrote:
First, term limits would shrink the gap between present political realities and the bygone moment in political time when a justice was appointed. That gap is sometimes intolerably large. The court’s most senior justice, Clarence Thomas, was nominated by President George H.W. Bush in 1991. Eight presidential elections have elapsed in the meantime. With an 18-year term, no more than four presidential elections could separate a sitting justice from the political moment of his or her accession to the bench.
Second, vacancies every two years would ensure that winning a presidential election translates to two Supreme Court appointments. When combined with the overall 18-year limit, this should produce a tighter fit between electoral outcomes and the court’s jurisprudence over time.
Third, advocates argue that this predictability will lower the temperature of judicial confirmation battles, because all sides will know they get a fresh chance at two seats after the next election.
Practically speaking, passing either term limits or a binding code of ethics for the Supreme Court would be a difficult task, given that Congress is starkly divided on the issue and implementing the proposal may require a constitution amendment. Nevertheless, the President of the United States officially announcing his support for such proposals encourages popular debate about whether the time for reform of the court has come.
For Discussion:
- How much of the material in this reading was new to you, and how much was already familiar? Do you have any questions about what you read? What personal connections, thoughts, or feelings did you have about what you read?
- How would the proposed term limits for judges change the nomination process of judges to the Supreme Court?
- According to the reading, what are some of the potential benefits of implementing term limits on the Supreme Court?
- Do you support the proposal for 18-year term limits? What arguments for or against it do you think are most compelling? Explain your position.
- Some critics argue that the Supreme Court’s overturning of long standing legal-precedents is an overstep of the role that a high court should play in a healthy democracy. What do you make of this argument? Do you think the Supreme Court has too much power, or that its powers are appropriate as currently exercised?
– Research assistance provided by Sean Welch.