How Democrats Aim to Change the Supreme Court if They Win the Election

Should Democrats win the White House in November, it could mean eventual changes for the Supreme Court. 

After dropping out of the race, President Biden proposed a plan that calls for a constitutional amendment and elements aimed at the Justices. 

Congress would need to play a major role in this process. Each aspect of his proposal would need wide support on both sides of Capitol Hill and any constitutional amendment would also go to the states for ratification.

While Vice President Kamala Harris has not mentioned this subject during her presidential campaign, she did express support when the president announced his plan.  A potential Harris administration would likely pursue the sweeping changes. 

Biden's three-pronged proposal includes:

1. A constitutional amendment that prohibits blanket immunity for presidents – a direct jab at the court's July ruling that declared immunity for official acts as president, affecting Donald Trump's legal issues.
2. Setting 18-year term limits for Supreme Court justices rather than the current lifetime appointment.
3. A binding code of ethical conduct for justices.

In a White House statement, Biden described his mission as a desire to restore trust and accountability to the American people. Since then, the plan has been met with criticism.

"The most radical change, and really attack on the judiciary that we've seen since at least 1937, with President Roosevelt's court-packing plan," said Andrew Grossman, a senior legal fellow at the Buckeye Institute.

Utah Senator Mike Lee (R) called the plan unconstitutional and an attempt to tear down the conservative-majority party. "President Biden's proposal for the Supreme Court flies in the face of the U.S. Constitution," said Lee.

Both House Speaker Mike Johnson (R-LA) and Senate Minority Leader Mitch McConnell (R-KY) predict such a proposal would be dead on arrival in Congress. "They're going to be very difficult to bring them through Congress," said Grossman.

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For a closer look at what's before lawmakers, we spoke to Regent University Law Professor Brad Jacob about the president's first prong.

"A constitutional amendment requires two-thirds of the House of Representatives, two-thirds of the Senate," Jacob pointed out, and he sees that as very unlikely.

"The minority party almost always has more than a third of each House, and then it would have to go to the states for ratification and get three-quarters," said Jacob.

When it comes to presidential immunity, Biden maintains no one is above the law – neither the President nor the Supreme Court.

Even without an amendment, Jacob feels certain criminal prosecutions, such as the effort to challenge the 2020 election, might still go forward as planned against former President Donald Trump. "Especially if he doesn't win the White House and isn't able to call off the Justice Department," said Jacob.

In calling for term limits, Biden also proposes allowing presidents to nominate justices every two years for 18-year terms. "That would correct the sort of serendipity of current Supreme Court appointments that sometimes a president in a very short time gets a bunch of appointments, and some presidents serve a relatively long time and don't get any appointments."

Jacob says a possible alternative to the 18-year term limit would be endowing justices with a senior status. "You're still a justice, you still collect your paycheck for as long as you're alive, but you become a senior status justice, which means you don't normally sit on cases."

Jacob says giving each president two appointments would still keep the court as a priority in presidential campaigns. In that example, he says, "We're going to end up voting not just for president and vice president, but president, vice president, and two Supreme Court justices."

As for ethics, all nine justices signed a formal Code of Conduct last November, after public pressure and closed-door negotiations. Some Democrats criticized it, however, over a lack of enforcement, demanding congressional intervention.
 
The future of the Biden effort to make these changes lies with the November election and a number of elements falling into place. 

Even if Harris wins the presidency, there would also need to be an overwhelming Democrat majority in both Houses to move the needle. 

While that could make a binding ethics code and term limits more likely, the odds remain even slimmer for a constitutional amendment.

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