Biden and Harris take on the Supreme Court

Although the news of the day is Biden's high court reform proposals, Harris's quick backing of them as a presidential candidate could be the long-term development that matters.

On Monday, the ethical and legal failures of the current U.S. Supreme Court — specifically, from its Republican appointees — finally led one of the strongest institutionalists in American politics, President Joe Biden, to speak out and call for action.

As previewed recently, Biden called for court reforms in a Monday morning op-ed — including a binding code of ethics, term limits on the justices, and a constitutional amendment addressing the Trump v. U.S. immunity decision — and Vice President Kamala Harris, running to take his place in January, quickly backed them.

Biden’s proposals come together through an obvious yet forceful statement: “No one is above the law. Not the president of the United States. Not a justice on the Supreme Court of the United States. No one.”

Harris echoed that in her own statement — noting that the changes would ”help to restore confidence in the Court, strengthen our democracy, and ensure no one is above the law.”

That is perhaps the most significant long-term development that came to pass on Monday. The Democratic Party now has a new presidential candidate, running for a first term, who is beginning her campaign by backing substantial Supreme Court reforms within the first 10 days of her candidacy.

This is as important for the Democratic Party and voters across the country as it is for keeping the court on notice that, if Harris is elected president, pressure is only going to mount if the conservative justices don’t change course.

In his Washington Post opinion column announcing the proposals he was backing, Biden is calling for three changes — although they were outlined in the op-ed and in a White House fact sheet briefly and with broad brushstrokes rather than legislative specifics.

Notable is the fact that, within that op-ed, Biden essentially argued that Justices Clarence Thomas and Sam Alito should have recused themselves from a handful of cases this term — including Trump v. U.S.

Biden wrote that “undisclosed gifts to justices from individuals with interests in cases before the court, as well as conflicts of interest connected with Jan. 6 insurrectionists, raise legitimate questions about the court’s impartiality.”

Biden is right — as I have discussed here at length. The failure of Thomas and Alito to recuse when called for is a scandal, and the presidential response we got on Monday is appropriate.

[Update, 10:00 p.m.: Biden spoke about the Supreme Court later Monday at the Lyndon Baines Johnson Library as part of his remarks on the 60th Anniversary of the Civil Rights Act of 1964.

In his speech, Biden referenced leading criticized decisions of the Supreme Court pulling back voting rights, abortion rights, and affirmative action. He mentioned Project 2025, highlighting its attacks on diversity and support for ending birthright citizenship. He highlighted the Trump v. U.S. decision, which led him into his discussion of the Supreme Court’s ethics problems and the three proposals he is backing.

“We need a mandatory code of ethics for the Supreme Court, and we need it now,” Biden said.']

The proposal that got most immediate support from Senate leaders was Biden’s call for enforceable ethics rules for the justices. Many have been calling for such changes for a long time now, and Fix the Court has pulled together a list of current legislation seeking to do so.

Senate Judiciary Committee Chair Dick Durbin, to his credit, highlighted a 2012 letter from him and other Democrats to Chief Justice John Roberts seeking additional transparency in the justices’ ethical commitments. A dozen years later, the president — and former Judiciary Committee chair — called it “common sense” for the justices to have a binding code of ethics.

Biden wrote on Monday:

The court’s current voluntary ethics code is weak and self-enforced. Justices should be required 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. Every other federal judge is bound by an enforceable code of conduct, and there is no reason for the Supreme Court to be exempt.

Durbin, in a statement, thanked Biden for highlighting the ethical concerns and said “The American people are demanding Supreme Court ethics reform, and I will continue my twelve-year effort until it is done.”

Biden also backed term limits for the justices, writing, “I support a system in which the president would appoint a justice every two years to spend 18 years in active service on the Supreme Court.”

The Brennan Center last year detailed the specifics of such a proposal — and an argument for how such a change can be accomplished without necessitating constitutional amendment.

The third proposal is one that, in contrast to the first two, is a quick-moving response to the July 1 decision granting former presidents lifetime immunity from criminal prosecution for most “official” acts taken while president.

Biden announced support for a “No One Is Above the Law Amendment” to counter the decision. Although the specific language was not laid out, the fact sheet said that the amendment would “state that the Constitution does not confer any immunity from federal criminal indictment, trial, conviction, or sentencing by virtue of previously serving as President.”

Harris echoed that in her statement: “[I]n our democracy, no one should be above the law. So we must also ensure that no former President has immunity for crimes committed while in the White House.”

Compared to the decade-plus of fidgeting over Supreme Court ethics issues, this is a remarkably strong and rapid response to the court’s decision.

Although Durbin did not endorse an amendment specifically, he suggested within his statement that something must happen, noting that Trump v. U.S. “was wrongly decided and must be remedied.”

To be sure, the first two reforms would require congressional action — not to mention a Supreme Court that wouldn’t block the reforms (a move that, itself, could start a new crisis) — and the amendment would require specifics and then a successful completion of the difficult amendment process.

The complications, however, are not reasons to oppose such proposals. If anything, the difficulty highlights how much more attention needs to continue to be given to the court and its actions — and how important it is that Biden is backing change and that Harris is already taking on the mission.

Moreover, it is not clear that these will be enough — and other changes, including court expansion, could be needed as well. But, it is hopeful a sign of how much the landscape has changed that Harris is beginning what could be eight years in office by aggressively pushing back against this Supreme Court.

That is needed, she said in her statement, because “there is a clear crisis of confidence facing the Supreme Court.” That is so, she continued, because “its fairness has been called into question after numerous ethics scandals and decision after decision overturning long-standing precedent.”

This is precisely the sort of forceful pushback that is needed when addressing an out-of-control court — not only from journalists and law professors or even lawmakers, but from the president.

On Monday, we got that — from the current president and the person seeking to be our next president.