We already knew the monumental stakes in this election: prosecutor v felon, the rule of law v the rule of raw power; democracy v dictatorship; women’s right to decide who they want to be and whether or not they wish to bear children v the Handmaid’s Tale.
Now add US supreme court reform v retrenchment. On Monday, Joe Biden proposed concrete steps to correct the supreme court extremism that Donald Trump has enabled through three appointments to the court. And the presumptive Democratic presidential nominee, Kamala Harris quickly endorsed it.
One of us, Laurence Tribe, was on the Presidential Commission on the Supreme Court of the United States that the president originally appointed to consider and analyze such changes. The commission’s report examined the proposal to limit court terms to 18 years; Biden’s new plan calls for such limits and also for an enforceable code of conduct mandating that justices “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”.
As night follows day, Trump – who lives and breathes by conflicts of interest – immediately disapproved.
The term limits, Biden said, would allow future presidents to appoint a justice every two years and make high court nominations “more predictable and less arbitrary”. In other words, when Americans elect successive presidents of different parties, we wouldn’t have presidents of one party getting three justices confirmed during a four-year term – as happened with Trump – and presidents of the other party getting only one appointment, as happened with Biden, or two in an eight-year term, as happened with Barack Obama.
Biden noted that the United States is the only major constitutional democracy that gives lifetime appointments to its high court justices.
We now have squarely before us a well-conceived proposal to reverse the far-rightward direction of this radical right US supreme court majority, in their headlong rush into a past of unequal justice for all.
Specifically, we have the prospect of freeing the country from an extremist majority that has already enabled a president to commit crimes, has overturned Roe v Wade, has eviscerated the 1965 Voting Rights Act, and has decimated the government’s ability to protect ordinary US consumers and prevent climate catastrophe.
Biden also called for a constitutional amendment to negate the court’s most recent outrage in Trump v United States, granting presidents complete immunity, for all practical purposes, from accountability to the law. As Biden cogently stated:
“This nation was founded on a simple yet profound principle: No one is above the law. Not the president of the United States. Not a justice on the Supreme Court of the United States. No one.”
Alexander Hamilton, James Madison and every American patriot who fought for our independence from a king would be shocked that any president would need to remind the US supreme court of that premise.
Small wonder that the most extreme members of the court blessed a president being above the law. Some view themselves the same way, immune to congressional authority.
Samuel Alito said this a year ago to a friendly lawyer writing an opinion piece in the Wall Street Journal, as Congress began considering ethics legislation to cover the court in the wake of Justice Clarence Thomas’s multiple scandals: “I know this is a controversial view, but I’m willing to say it. No provision in the constitution gives them the authority to regulate the supreme court – period.”
No surprise if Thomas were to join that view. But this month, Justice Elena Kagan broke with the court’s public unanimity on the sufficiency of its recently adopted ethical guidelines. She said: “The thing that can be criticized is, you know, rules usually have enforcement mechanisms attached to them, and this one – this set of rules – does not.”
That statement opens the door to other justices agreeing about the need for reform.
An overwhelming majority of today’s Americans hold negative views about the court. Even before the immunity decision, as of April 2024, polling showed citizens disapprove of the court’s performance by a stunning 51% to 36% margin. That’s a larger margin than the underwater favorability of Trump according to Sunday’s ABC/Ipsos poll. (Kamala Harris’s approval rating is net favorable.)
Under a President Harris, forward motion on all three proposals for supreme court reform would require a Democratic House and Senate. That could happen if Harris wins with down-ballot coattails. It could also happen because a Trump defeat might alert some moderate-leaning Republican representatives in Biden-Harris districts or states that their political future depends on parting company with Maga-world and returning to commonsense Americanism.
And remember, even if there is no majority for these changes in 2025, we have elections that change Congress every two years.
With Trump’s forecast on Friday of an end to elections if he’s elected, the fierce urgency of now has surged. Extremists on the court could back him if what he promised to his religious audience comes to pass: “Christians … [i]n four years, you don’t have to vote again. We’ll have it fixed so good, you’re not going to have to vote.”
We, the people, cannot allow that disaster to unfold.
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Laurence H Tribe is the Carl M Loeb University professor of constitutional law emeritus at Harvard University
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Dennis Aftergut is a former federal prosecutor, currently of counsel to Lawyers Defending American Democracy