Biden proposes major Supreme Court reforms.

One of the key elements is term limits for justices.

I’m Isaac Saul, and this is Tangle: an independent, nonpartisan, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum on the news of the day — then “my take.”

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Today, we are breaking down Biden's call for reforms to the Supreme Court, with an extra focus on term limits for justices.

Today's topic.

Biden’s Supreme Court reforms. On Monday, President Joe Biden proposed a set of reforms for the U.S. Supreme Court. The proposal recommends two new laws: one that sets an 18-year term limit for justices, and another that creates an enforceable code of conduct and ethics rules for the court. Additionally, Biden called for a constitutional amendment ensuring that presidents do not have immunity from federal criminal indictment, trial, conviction, or sentencing upon leaving office.

Biden’s suggested term limit for the Supreme Court would have the president nominate one justice every two years while capping the length of each justice’s term at 18 years. Currently, presidents appoint Supreme Court justices whenever there is a vacancy on the court to serve for life or until they voluntarily retire (justices can also be impeached). Under this system, former President Donald Trump nominated three justices to the court during his four-year term; President Biden has nominated one.

The proposed ethics code would require justices 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.” In November 2023, the court voluntarily adopted its first-ever code of conduct, which prohibits justices from publicly speaking at political events, recommends against the appearance of impropriety, and encourages recusal against conflicts of interests. Biden’s plan would go further, making these rules enforceable and more in line with the ethics standards for all other federal judges.

Either of these reforms would represent some of the most significant changes to the court in its history. In an op-ed in The Washington Post, Biden argued that the court’s recent decisions and controversies require “bold reforms to restore trust and accountability to the court and our democracy.”

Biden’s suggested constitutional amendment would be the first ratified federal amendment since the 27th Amendment in 1992. The “No One Is Above the Law Amendment” states that former presidents do not have immunity for crimes committed while in office. In his op-ed, Biden wrote that the court’s July decision to grant presidents immunity for conduct deemed to be within their official duties “means there are virtually no limits on what a president can do.”

Since the court proposals require a vote of Congress and the constitutional amendment requires the states, the president has no formal power to advance them. Republican lawmakers have signaled their opposition to the legislation, and Congress is unlikely to vote on the issues before the election, meaning they won’t be considered before Biden leaves office. Still, the reforms outline a potential platform for other Democrats to run on, as polling shows Democratic voters overwhelmingly favor changes to the court like those in Biden’s proposal.

We previously covered Democrats’ effort to reform the Supreme Court here, here, and here.

Today, we’ll explore reactions to the proposed reforms from the right and left. Then, my take.

What the right is saying.

The right opposes Biden’s proposal, calling it a move to limit the independence of the Supreme Court.
Some say the effort is driven by Democrats’ frustration with the court’s recent rulings, not concern for its legitimacy.
Others say the proposals are reasonable in theory but unlikely to be enacted.

In Fox News, William Barr and Kelly Shackelford wrote about “the growing threat behind Biden's Supreme Court proposal.”

“Americans need to understand that the campaign to radically change the Court is coming. While current proposals like term limits for the longest-serving justices and an imposed code of ethics threaten the Constitution and the separation of powers, the far left is demanding that Court be packed with additional liberal justices. Whoever the Democrat nominee for President is, if they win, that is exactly what will happen, and it only takes a majority vote and the signature of the President.”

“‘Court reform’ is nothing more than a desperate attack to subvert the legitimacy of the Supreme Court because it contains a majority of justices committed to the Constitution and originalism. If this coup succeeds, the rule of law will be over as the judiciary will become little more than a political tool of whomever holds power,” Barr and Shackelford said. “Congress has no business interfering with the actions of the judiciary. It is the separation of powers into three distinct branches of government that makes our nation strong.”

In National Review, Dan McLaughlin argued the “plan attacks the most fundamental basis of the American system.”

“Since 1789, we’ve also had a rules-based system for controlling who sits on the Supreme Court: You win presidential elections, and you get to nominate justices; you win Senate elections, and you get to confirm them; and they serve for life,” McLaughlin wrote. “Now, Biden and Harris want to break that bargain… this is a calculated multifront effort to destroy the legitimacy of the rules-based outcomes of our democracy, in order to overturn those outcomes.”

“Article III could not be clearer that justices have life tenure… Limits on the judiciary come not from political accountability but from judicial fidelity to written rules,” McLaughlin said. “Biden notes that ‘the United States is the only major constitutional democracy that gives lifetime seats to its high court Justices.’ That’s a good thing. We’re America. Our system is the best. Our Constitution has lasted longer than any of the others. Why would we want to imitate the constitutional histories of Germany or France?”

In Reason, Ilya Somin said Biden’s reforms “are potentially good ideas. But [the] devil is in [the] details.”

“All three ideas are potentially good. But Biden is short on details, and term limits can only be properly adopted by a constitutional amendment… there is also an obvious political dimension to this announcement,” Somin wrote. “When these ideas were first floated a couple weeks ago, Biden was still trying to salvage his own presidential campaign. Now, they could help bolster that of VP Kamala Harris (who has endorsed them)... Now that they have been endorsed by the current and future leaders of the Democratic Party, the chance they might eventually be enacted in some form has significantly increased.”

“Biden doesn't tell us whether term limits should be enacted by amendment or statute. He also doesn't address the difficult issue of how to handle current justices. Including them in the term limit plan (effectively forcing some to retire soon) would anger the right. Not doing so would likely offend the left,” Somin said. “Unlike with term limits, Congress has broad (though not unlimited) power to enact ethics restrictions on the Supreme Court. I'm fine with requiring justices to disclose gifts… However, much depends on what qualifies as an ‘other conflict of interest.’ I don't think the mere fact that a spouse has been active on an issue in the political arena qualifies.”

What the left is saying.

The left supports the reforms, praising Biden for putting them forward before the end of his term.
Some say the proposals have a chance of passing a future Congress.
Others say the reforms are reasonable but not politically viable.

In New York Magazine, Ed Kilgore wrote “Biden is opening the door to Supreme Court reform.”

“Biden’s new set of proposals for reforming the U.S. Supreme Court are not going to be enacted any time soon… But is Biden’s initiative destined to become a footnote in the 2024 presidential contest, or worse yet, a right-wing talking point for those frantically trying to make the case that Democrats pose a greater threat to our legal system than the infamous scofflaw Donald Trump? Maybe not,” Kilgore said. “Biden’s tardy embrace of major Supreme Court reforms is an authentic reflection of how toxic SCOTUS has become since its transformation into a conservative activist institution — long underway but consummated by Trump’s three Court appointments.”

“That a hard-core institutionalist like Biden, for many years a member of the Senate Judiciary Committee, the great defender of SCOTUS prerogatives, is proposing a major restructuring of the Court shows how significantly its reputation has eroded during the tenure of Chief Justice John Roberts,” Kilgore wrote. “The big-picture perspective is that the reforms Biden is proposing are no longer remotely as controversial as they once were, proving that conservatives could pay a big price for the radical policy gains they have achieved by their recent domination of the Court.”

In The Los Angeles Times, Harry Litman argued “Biden is playing the long game.”

“With Congress hopelessly polarized and the Supreme Court hopelessly politicized, there is no chance of action on Biden’s proposals in the coming months, and the administration well understands that point,” Litman said. “Why then choose now to introduce them? After all, Biden has steadfastly resisted pleas from progressives to try to reform the court — and he has been under pressure since he took office, because President Trump had just tilted the court to the right by appointing three justices. The straightforward explanation for the timing is to make the Supreme Court, now quite possibly the most unpopular of all federal governmental institutions, a focus of the election, which would presumably nudge voters toward Vice President Kamala Harris.”

“But the proposals shouldn’t be dismissed as a mere political gesture. Biden and the Democrats are also playing the long game, looking in particular to make the court a campaign issue. Then if they win control of both chambers and the White House, they can portray their election as a mandate for substantial reforms,” Litman wrote. “Today’s proposals only reinforce the grave loss of confidence it has brought on with its own overreaching… Supreme Court history teaches that whatever its recognized authority in individual cases, it is untenable for it to operate indefinitely so against the grain of the American people.”

In The New York Times, Erwin Chemerinsky said “the election is crucial to the Supreme Court’s future. Biden’s reform plans are not.”

Biden’s “reforms are unquestionably desirable but they have little chance of being enacted. The laser focus for Democrats and others alarmed by the direction of the court should instead be on the November election,” Chemerinsky wrote. “The most important proposal by Mr. Biden is to impose term limits of 18 years for Supreme Court justices, which would allow a president to make two regular appointments in a single term. That idea makes enormous sense… The problem with term limits for Supreme Court justices, and certainly ones that would apply to the current justices, is that they would require a constitutional amendment.”

“I agree with Mr. Biden’s proposed reforms and hope that eventually they will be adopted. But the central challenge right now is to prevent Mr. Trump’s return to office and what that could mean for the court and the rule of law,” Chemerinsky said. “No Supreme Court reform that has a chance of being adopted anytime soon is likely to make a difference in the court’s composition. But the presidential election will, and the focus in the months ahead should be on the enormous difference between who Mr. Trump and Kamala Harris would appoint to the high court.”

My take.

Reminder: "My take" is a section where I give myself space to share my own personal opinion. If you have feedback, criticism or compliments, don't unsubscribe. Write in to staff@readtangle.com or leave a comment.

I’ve talked about presidential immunity and Supreme Court ethics before, so I’ll focus on term limits: I think Biden’s plan is flawed.
Biden is acting out of partisan motivation, against the founders’ intention, and to solve the wrong problems.
18-year term limits are a mixed bag, but I’m fully against the timing and manner of this proposal.

I’ve written a lot about ethics rules for the Supreme Court (I understand the risks, but I’m mostly in favor) and presidential immunity (I don’t think presidents should have absolute immunity), so I’m not going to re-establish my positions here. Instead, I’m going to focus on the novel proposal: term limits for Supreme Court justices.

A few years ago, I wrote critically about Democrats' attempt to expand (read: pack) the court, and more favorably about term limits, which I viewed as a separate idea. That was before the court became the ideological battleground it has become over the last three years. We didn't really explore term limits very closely, but I said it was a solid idea — more of a "new paint job" rather than a "remodeling."

Back then, I had a theory: 1) Justices had started to retire their positions following the election of an ideologically aligned president, which is a pretty new phenomenon. 2) Congress has been historically dysfunctional as of late, so the court now often settles legislative disputes. 3) The court today is composed much more by lucky or political timing than by our representative government nominating and confirming justices. A properly designed solution to these issues would create an equal number of openings during every presidential term, allow presidents to pick more experienced justices (rather than the youngest, minimally qualified candidates who could sit on the bench the longest), and it would remove the Supreme Court as an on-again off-again election issue (right now, anytime an ailing justice seems to be on the way out, it becomes a centerpiece of that election). There even seemed to be a sliver of bipartisan support for these ideas (some conservatives, like Ilya Somin above, still seem to support it).

But there are also strong counterpoints to my arguments: Term limits would ensure that Supreme Court seats were a part of every election, rather than a select few, which could actually compound the issue I’m worried about. Congressional dysfunction is not the Supreme Court’s fault, and it shouldn’t be solved by reforming a different branch of government but by reforming how we elect members of Congress. And while justices retiring their seats at politically advantageous times is a sticky issue to solve, the downsides of fixing it with a system that limits experience on the bench, forces out justices out who could still do the job well for years to come, and sends an antagonistic signal to the judiciary from the president are all too much for me to swallow.

Even if you think the original arguments withstand the counterpoints, Biden’s actual proposal looks much different in practice than it did in theory — and it looks much different being pushed by a lame duck president for partisan reasons. In National Review, Dan McLaughlin raised salient points to explain why the proposal falls short:

1) Biden is doing this for the wrong reasons. Let me explain why that matters. For starters, he's embracing this idea because he does not like the rulings from this court, which he has called an “extreme” threat to democracy, not to address the systemic issues laid out above. But term limits wouldn’t “solve” the court’s ideology — and this court isn’t all that predictable. In the last term, 45.8% of cases were decided unanimously (a relatively high rate for the court in recent years). Of the 22 cases decided 6-3, only 11 were along ideological lines.

Given these stats, it's easy to see Biden’s motivations as blatantly partisan. When that’s the case, there’s a strong possibility the “solution” ends up being temporary or destabilizing — and it opens the door to future Republican administrations “reforming” the court in response to a streak of rulings they don’t like. Republicans certainly see it this way, with Speaker Johnson (R-LA) calling Biden’s plan “dead on arrival” in Congress. Nothing in this proposal says the 18-year term limit is prospective, which implies that Justice Clarence Thomas (confirmed in 1991) and Chief Justice John Roberts (2005) would be forced out immediately. Justice Samuel Alito (January 2006) would be next. Do I think Biden would be doing this if three liberal justices were the first in line to be pushed out? Of course not.

When other leaders do something like this, we rightly cringe. Israeli Prime Minister Benjamin Netanyahu’s "judicial reforms" in Israel divided the country and started nationwide protests. He, too, seemed to be trying to change a high court because he doesn't like how it rules, and the political left (both in Israel and the U.S.) rightly excoriated him for it.

2) Our founders’ intention was for Supreme Court justices to sit for life. Because that intention is clear, enacting this reform would probably require a constitutional amendment. Which isn't happening. (For what it’s worth, I do think Congress has the authority to impose ethics rules, but those are much different than term limits).

Alexander Hamilton wrote that a system of lifetime tenure would produce older, more experienced justices who don’t have to worry about the length of their terms. If we’re concerned about justices hitting an age where they can't do their jobs any longer, which hasn't happened recently, term limits aren’t the right remedy for that affliction.

3) Most importantly, the fix for impropriety isn’t term limits — it’s to limit impropriety. "Limits on the judiciary come not from political accountability but from judicial fidelity to written rules," McLaughlin wrote. It's a true and musical line, but it opens him up to reasonable criticism: McLaughlin seems opposed to more stringent ethics rules — like the one Biden is proposing — that are the kind of written rules I think our justices should have fidelity to.

So, while I agree that the court’s accountability should come from "judicial fidelity" to written rules, I don’t think there are enough written rules governing the court. Which is why it's fair to raise the idea (absent term limits or other reforms) of creating more accountability for this court. Not because of how they have ruled, but because of how they have behaved.

All this is to say: the term limits proposal is being put forward for the wrong reasons at the wrong time, would create a political maelstrom, and has downsides and roadblocks the president doesn't seem to consider. I still support term limits for Congress, but I can recognize that the Supreme Court is a different entity that would be impacted in a different way by a similar system.

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Under the radar.

Officials in West Texas have declared a state of emergency due to earthquakes they believe to be caused by oil drilling. Scurry County has experienced more than 100 earthquakes in the last week alone, with one registering at a magnitude of 4.9. Texas is not a seismically active part of the country, but new forms of drilling in local oil fields release saltwater that is subsequently pumped back into the earth, which can cause earthquakes. The oil fields and the earthquakes are "almost 99% likely" to be linked, according to Justin Rubinstein, a geophysicist with the U.S. Geological Survey in Menlo Park, California. USA Today has the story.

Numbers.

38%. The percentage of registered voters who approve of the job the U.S. Supreme Court is doing, down from 58% in 2017, according to a July 2024 Fox News poll.
81%. The percentage of registered voters who say they favor establishing a mandatory retirement age for Supreme Court justices, up from 71% in 2022.
78%. The percentage of registered voters who say they favor limiting justices to an 18-year term, up from 66% in 2022.
91%. The percentage of voters who believe an independent judiciary is a crucial safeguard of civil liberties, according to a 2023 poll from Mason-Dixon.
49%. The percentage of voters who think a mandatory retirement age for judges would not reduce the politicization of the Supreme Court.
75%. The percentage of voters who said they approved of a binding code of ethics for the justices, according to a September 2023 Morning Consult/Politico poll.
27 of 33. Of the constitutional amendments passed by Congress in U.S. history, the number that have been ratified by the states.
8. The number of constitutional amendments ratified in the last 100 years.

Have a nice day.

The 2024 Paris Olympics are underway with athletes at the height of their sport competing for their nations. Nada Hafez, an Egyptian fencer and 3-time Olympian, competed in the individual saber competition this past Monday. After winning her first match, she was eliminated in the round of 16. However, she made an exciting announcement on Instagram after competing: She is 7 months pregnant. “What appears to you as two players on the podium, they were actually three! It was me, my competitor, & my yet-to-come to our world, little baby," she posted. CBS News has the story.