Franklin D. Roosevelt attempted to alter the Supreme Court in 1937 after the justices blocked a major chunk of his New Deal legislative agenda. Biden can make no such complaint about today’s court. Yes, the justices in 2022 overturned their own precedent in Roe v. Wade, returning abortion policy to the states, and in 2023 they shot down Biden’s brazen attempt to seize Congress’s spending power by canceling over $400 billion in student loan debt. But to the extent that this president’s far-reaching legislative agenda has been stymied, Congress, not the court, has been the culprit.
It’s telling that the one Supreme Court decision that the bitter Biden wants a constitutional amendment to reverse is the one that hindered his administration’s ability to prosecute his political rival during the 2024 election season. In Trump v. United States, the Supreme Court held that presidents may not be criminally prosecuted for performing their core constitutional functions and that they have some level of immunity for other “official acts.”
Repeating the incantation that “no one is above the law,” Biden expressed his dislike for the decision and proposed a constitutional amendment to “make clear that there is no immunity for crimes a former president committed while in office.” But what does Biden want the amended Constitution to say, exactly? The White House offers few specifics for this or any of his ideas. After all, Biden’s own Justice Department conceded in court proceedings that there could be circumstances — such as when the president orders a military strike abroad — in which courts “would properly recognize some kind of immunity.”
One constitutional amendment on the subject proposed by Democrats in Congress says that former presidents are not immune from prosecution for breaking an “otherwise valid” criminal law “on the sole ground” that their charged conduct was an official act. But Chief Justice John G. Roberts Jr.’s opinion in Trump v. United States explained that a law that criminalizes the president’s performance of core constitutional duties — such as firing a subordinate — is not valid. Biden’s Justice Department made a historic mistake in trying to prosecute former president Donald Trump for such obviously protected conduct.
As Justice Amy Coney Barrett put it in her concurrence, the court’s idea of “immunity” is partly a “shorthand” for the proposition that former presidents “can challenge the constitutionality of a criminal statute” used against them. On that point, again, the Biden Justice Department partly agreed, telling the Supreme Court that presidents “can assert as-applied Article II objections to criminal laws that interfere with an exclusive power.”
Is it Biden’s intent to reverse his own Justice Department’s position — and to constitutionally strip presidents of any criminal defense when they are prosecuted by the opposing party for a controversial official act such as pardoning an unpopular prisoner? I doubt it, but then again, it hardly matters. Biden and his advisers seem to be picking an issue they know is a political wedge and hoping the public will ignore its complexity as his messaging team repeats rote political slogans. (Have you heard that no one is above the law?)
The second piece of Biden’s proposal, term limits for Supreme Court justices, has at various times attracted bipartisan interest. It wouldn’t necessarily favor one party or another if implemented only prospectively. But Biden leaves the details ambiguous, presumably to please his co-partisans who want to use term limits to knock out long-serving incumbent justices they dislike. By associating term limits with his pique at Donald Trump and the current Supreme Court majority, Biden has polarized perhaps the least-controversial reform idea on the table.
As for a “binding” ethics code (again using congressional proposals as a guide because the White House doesn’t say exactly what it intends), that would mean putting lower-court judges in charge of Supreme Court justices’ decisions whether to recuse themselves from a case, distorting the judicial hierarchy. It might also involve creating a new bureaucratic office to investigate justices in perpetuity.
The balance of power among the branches of government is determined by the effectiveness and trustworthiness of each branch. The irony of this push to tar the judiciary is that it comes from a White House just caught in a grave concealment of information on the president’s infirmity from voters. And the push itself is half-baked: long on clichés, short on specifics that the administration can actually throw its weight behind and defend. Love or hate this Supreme Court, at least it shows its work.
Fundamentally revising the constitutional balance of power, as Biden wants to do, requires more than vacuous endorsements of generic ideas. It requires real statesmanship and savvy — political mastery on the scale of presidents to whom Biden has been grandiosely compared.
The president delivered his address on the Supreme Court at the Lyndon B. Johnson library in Texas. Perhaps he should have instead traveled to the Andrew Johnson library in Tennessee. Another one-term president blocked by his own party from seeking a second term, Johnson also proposed judicial term limits (among other significant structural changes to American government) on his way out the door in 1868.
That Johnson is widely considered one of the country’s worst presidents, but at least he was statesmanlike enough to submit to Congress the text of the constitutional amendments he proposed to pass, so their details could be seriously scrutinized and debated. Biden seems more interested in a last act of pathetic but corrosive ideological grandstanding as he fades, against his will, from the political scene.
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