Topline
President Joe Biden endorsed legislation Monday that calls for term limits for Supreme Court justices, among other reforms—throwing his support behind a plan that’s long been suggested by legal experts, though his endorsement likely won’t be enough to pass the measure in a divided Congress.
President Joe Biden delivers remarks on July 14 in Washington, DC.
Key Facts
Biden endorsed a plan for term limits along with binding ethics reforms and a constitutional amendment prohibiting presidential immunity, saying term limits would allow the Court’s membership to change “with some regularity,” “make timing for Court nominations more predictable” and “reduce the chance that any single Presidency imposes undue influence for generations to come.”
Democratic lawmakers have already introduced legislation in Congress that would impose 18-year term limits for justices, requiring presidents to appoint new Supreme Court justices within 120 days of the first and third years of their presidential terms, which is the system that Biden said Monday he supports (though he didn’t specify whether he wants legislation or a constitutional amendment).
After their term is up, justices wouldn’t resign completely, but would only hear a smaller subset of cases: Only the nine most recently appointed justices would hear most cases, while other justices would join in for cases that originate in the Supreme Court, which include disputes between states or foreign officials.
A bipartisan group of legal experts endorsed 18-year term limits in October, arguing it would preserve “judicial independence” while “reducing the incentives for strategic retirements and political campaign–style efforts focused on the nominations process,” and would mean no one president could appoint a majority of justices on the court.
Biden previously assembled a commission to study Supreme Court reforms including term limits, which didn’t make any judgment call about the proposal in its final 2021 report, but noted pros and cons, explaining proponents believe it would make the court more broadly reflective of who the country elects and ensure no single justice can hold an excess amount of power by staying on the court for a particularly long time.
Opponents of term limits believe it could further politicize the court by making the president’s guaranteed appointments into a campaign issue during elections, as well as make justices come across more as partisan actors tied to the president who appoints them, the commission noted.
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What To Watch For
Biden’s support for term limits doesn’t change the fact that it’s far from likely the measure could actually pass. Republicans in Congress have been staunchly opposed to any Democratic proposals for Supreme Court reform, which they’ve characterized as partisan retaliation by Democrats over Supreme Court decisions the left doesn’t like, and House Speaker Mike Johnson, R-La., said Monday any proposals on court reform are “dead on arrival” in the House. Any legislation on term limits would need 60 votes to pass the Senate, which is unlikely even if Democrats were to win full control of Congress in November. If the term limits measure did manage to pass, reporter and frequent court critic Elie Mystal noted on X earlier in July that the issue of whether the term limits are constitutional could ultimately be decided by the Supreme Court itself—and justices would probably rule against it.
Are Term Limits Constitutional?
Biden’s Supreme Court commission noted it was “divided” on the question of whether imposing term limits through a congressional statute, rather than amending the Constitution, would be constitutional. Article III of the Constitution states judges “shall hold their Offices during good Behaviour,” which has been interpreted to mean justices have to hold lifetime appointments. The commission said Congress could get around the issue by having only the most recent justices hear most cases, which originate in lower courts, while still keeping the older ones on to hear cases that originate in the Supreme Court. That strategy, as Democrats’ legislation lays out, would create the “effective equivalent” of term limits without actually violating Article III by kicking justices off the court. Proponents also point to previous Supreme Court precedent to suggest Congress is allowed to change which justices hear cases originating from the lower courts (the ones that only the nine most recent justices would hear), but just can’t alter “original jurisdiction” cases that all justices would still hear under the legislation. Ultimately, however, the commission noted lawmakers should “at a minimum” give the idea of imposing term limits via statute “serious deliberation” given the possible constitutional issues it raises. If lawmakers do take that approach, the commission suggested they should also try to pass a constitutional amendment alongside it that specifies the size of the court, which would clarify the proposal isn’t kicking justices off the court in violation of Article III.
Big Number
78%. That’s the share of registered voters who support 18-year term limits for Supreme Court justices, according to a Fox News poll conducted July 7-10, up from 66% in 2022.
Surprising Fact
The U.S. is the only constitutional democracy in the world whose highest court doesn’t have either term limits or age limits for justices in place, Biden’s Supreme Court commission noted in its report.
Tangent
In addition to term limits, Biden also endorsed legislation that would create a binding code of ethics for Supreme Court justices, as lower federal judges already have to follow. Justices currently only have to voluntarily follow ethics guidelines, and there are no consequences imposed if they don’t—even after the court came out with new ethics rules for itself last year in response to a series of controversies. That’s also unlikely to pass Congress given GOP opposition, and previous recent efforts to move ethics legislation forward have failed. The president also backed a constitutional amendment that would specify presidents and ex-presidents don’t have immunity from criminal prosecution, undoing the Supreme Court’s recent decision in favor of former President Donald Trump. Passing a constitutional amendment would have to clear an even higher bar than other bills, however, requiring a two-thirds majority in both congressional chambers plus state approval—which is deeply unlikely to happen.
Chief Critic
Trump responded to reports that Biden could announce support for Supreme Court reform on Truth Social earlier in July, calling the proposed reforms “an illegal and unConstitutional attack on our SACRED Supreme Court.” “The Democrats are attempting to interfere in the Presidential Election, and destroy our Justice System, by attacking their Political Opponent, ME, and our Honorable Supreme Court,” Trump continued.
Key Background
Public trust in the Supreme Court has plummeted to record lows in recent years as the 6-3 conservative court has repeatedly faced criticism for being overly partisan, issuing major opinions on such issues as abortion, guns, LGBTQ rights and Trump that have garnered major pushback from the left. The court has also come under fire as justices have faced a series of ethics scandals, particularly reports that Justice Clarence Thomas received a slew of luxury vacations and other gifts from wealthy friends without reporting them, and Justice Samuel Alito participating in 2020 election cases after reports emerged that he and his wife flew flags outside their homes that are associated with the “Stop the Steal” movement. (Both justices have denied any wrongdoing.) Democrats have called for major reforms like imposing term limits and expanding the Supreme Court to add more justices in an effort to combat its conservative tilt, though such proposals have always been viewed as an extreme longshot. Biden’s endorsement of some reforms marks a significant step for the president, however, who has previously been resistant to embrace large-scale reforms to the high court.
