Biden’s Supreme Court plan is a ‘sensible and common sense’ reform, legal expert says

BUFFALO, N.Y. – President Joe Biden’s proposed Supreme Court reforms could prevent the drift toward an authoritarian executive, protect separation of powers and restore judicial accountability, says University at Buffalo legal scholar Manoj Mate.

Biden’s plans include a constitutional amendment stating that the Constitution does not confer immunity from criminal prosecution for acts committed by the president; 18-year term limits for Supreme Court justices; and a binding code of conduct for the justices.

“These are sensible and common-sense reforms that would restore equilibrium to our system of separation of powers and the rule of law,” says Mate, an expert on constitutional law and the Supreme Court.

Plan stems from recent decisions, ethics scandals

The proposals are a response to recent decisions in which the court has overturned settled precedent protecting fundamental rights, including civil rights, voting rights and the right to abortion, says Mate, who studies constitutional law, election law, and judicial politics in U.S. and comparative contexts. 

More recently, the court in Trump vs. U.S. held that the president has broad immunity from prosecution for criminal acts committed while president.

The decision poses “an existential threat to U.S. democracy and separation of powers by creating a pathway to an authoritarian presidency that is above the law,” he says. Moreover, it has been criticized by many for “failing to properly analyze the text, history and structure of the Constitution,” says Mate.

“These recent Supreme Court decisions have profound consequences for fundamental rights, separation of powers and the accountability of the executive branch. In addition, these developments raise serious concerns about an unaccountable imperial Supreme Court,” he says.

Collectively, these decisions and ethics scandals involving unreported gifts to justices have caused many observers and commentators to “sound the alarm that the court has entered a new phase of judicial aggrandizement,” he says.

Not a court-packing plan

Although some have suggested that Biden’s plan represents a threat to judicial independence, the reforms would not have immediate impacts on the composition of the court or its powers, according to Mate.

“Biden’s plan is not a court-packing plan like the plan advanced by President Franklin D. Roosevelt in response to court decisions that invalidated key New Deal policies,” Mate said.

“Rather, the plan seeks to address and respond to recent court decisions and developments that present existential threats to the rule of law and our system of separation of powers,” he says. “In addition, the plan does not seek to restrict or curb the power or jurisdiction of the court in line with recent proposals.”

Challenges implementing the plan

Biden’s proposed code of conduct 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.”

“The proposed binding code of conduct is a welcome step and would go a long way toward addressing conflicts of interest and perceived corruption by applying the same code that is binding on lower federal court judges to Supreme Court judges,” says Mate.

However, the other two proposals will be more difficult to enact given that they would likely require amending the Constitution, he says.  

“These reforms would require the enactment of constitutional amendments that would be very difficult to enact given the high procedural hurdles for amendment, which requires a two-third vote in the House and Senate and ratification by three-fourths of the states,” he says.

“While court-packing proposals have been frowned on by some as an attack on judicial independence, a proposal to expand the court may be the only way to immediately address the threats posed by the court’s recent decision in Trump vs. U.S.,” Mate says.