Biden has proposed an enforceable code of ethics and term limits for the Supreme Court. How might they work?

WASHINGTON — President Joe Biden proposed major changes to the U.S. Supreme Court on Monday: an enforceable code of ethics, term limits for justices and a constitutional amendment that would limit the justices’ recent ruling on presidential immunity.

The proposal has almost no chance of passing in a closely divided Congress with Election Day approaching, but the idea could spark debate and public confidence in the court could rise all-time low amid ethical revelations about some of the justices. The event comes against the backdrop of a controversial presidential election and growing outrage among Democrats over recent decisions by the conservative majority court.

” READ MORE: Biden condemns ‘extremism’ on Supreme Court, details plan on term limits and ethics code for judges

Let’s take a look at these ideas, how to implement them, and possible obstacles:

How will the terms of office of judges be circumscribed?

Limiting the term limits of US Supreme Court justices enjoys broad support among Americans, polls show.

A July 2022 poll by The Associated Press-NORC Center for Public Affairs Research found that 67% of Americans support a proposal to set a specific number of years for judges to serve in office rather than life sentences, including 82% of Democrats and 57% of Republicans.

” READ MORE: 7 in 10 Americans say Supreme Court justices put ideology above impartiality, fresh AP-NORC poll finds

Biden’s proposal would limit justices’ terms to 18 years. Biden said such a system would make appointments more predictable, less arbitrary, and reduce the risk that one president could shape the Supreme Court for generations.

There’s a earnest problem: The Constitution grants all federal judges lifetime tenure unless they resign, retire or are removed.

There are ideas for implementing term limits without requiring amendments — but if such a law were to pass and go to court, the justices could issue a ruling on the matter, and there’s no telling what that ruling would be, said Charles Geyh, a law professor at Indiana University and an expert on judicial ethics.

How will the code of ethics be enforced?

The Supreme Court did not have a formal code of ethics until last year, when the justices adopted one in the face of ongoing criticism over undisclosed trips and gifts from wealthy benefactors to some justices, such as Clarence Thomas.

What’s still missing is a way to enforce the law — what Biden calls “common sense.” For example, members of Congress generally can’t accept gifts worth more than $50.

” READ MORE: Justice Clarence Thomas took more trips paid for by donor Harlan Crow, Senate committee reveals

Anyone can file a complaint against other federal judges who are subject to censure and reprimand. Justice Elena Kagan expressed support for adding an enforcement mechanism to the Supreme Court’s ethics code in a public statement last week.

Still, making the Supreme Court’s code of ethics enforceable raises many questions about how it might be enforced and who might do it.

Lower courts have argued that their disciplinary procedure is not intended to directly enforce the code of ethics, holding that the code is too broadly worded for violations to directly result in disciplinary action, Geyh said.

That code of ethics is overseen by the Judicial Conference, headed by Chief Justice John Roberts. “He may be reluctant to use any power the conference has against his colleagues,” Stephen Gillers, an expert on legal ethics at New York University School of Law, said in an email.

” READ MORE: Alito rejects calls to dismiss Supreme Court cases involving Trump and January 6 over flag controversy

What about presidential immunity?

Biden is also calling for a constitutional amendment to limit the recent Supreme Court decision granting former President Donald Trump — and all other presidents — broad immunity from criminal prosecution.

The amendment “would clarify that there is no immunity for crimes committed by a former president while in office,” Biden wrote in an opinion piece in the Washington Post. “We are a nation of laws — not kings or dictators.”

” READ MORE: Explaining the US Supreme Court’s ruling on presidential immunity and what it means for Trump’s ability to stand trial

It wouldn’t be the first time — the Constitution has been amended about five times in U.S. history to overturn a Supreme Court decision, Geyh said.

But constitutional amendments face even greater hurdles than new laws. A proposal must win support from two-thirds of the House and Senate and then be ratified by three-fourths of the state legislatures.

No new amendments have passed in more than 30 years. Republican House Speaker Mike Johnson called Biden’s proposal a “dangerous gambit” that “would be dead on arrival in the House.”

Biden has pushed back against other calls for Supreme Court reform

Biden, a former chairman of the Senate Judiciary Committee, has long opposed calls for Supreme Court reform.

In 2021, he fulfilled a campaign promise by convening a commission to examine potential changes to the court. It was not tasked with making recommendations and warned that excessive changes could potentially undermine democracy.

The latest proposals come years later, amid growing outrage among Democrats over supreme court opinions that overturned landmark decisions on abortion rights and federal regulatory powers, and amid a hotly contested presidential election against Trump.

Even if Biden’s ideas are unlikely to catch on, they could get voters’ attention. Vice President Kamala Harris, whom Biden endorsed for president after dropping out of the race, has endorsed the proposal.

But conservatives like activist Leonard Leo have slammed the bill, saying in a statement: “This is about Democrats trashing a court they disagree with.”