Susan Walsh/AP Photo
Vice President Kamala Harris speaks from the South Lawn of the White House, July 22, 2024.
President Joe Biden was all set to announce a major initiative to reform the U.S. Supreme Court, just days before he suspended his re-election campaign and endorsed Vice President Kamala Harris.
The new presumptive nominee’s own plans regarding the Court now remain to be seen, but there are indications that Harris will move forward with similar proposals to create term limits and enforceable ethics rules for the justices. And there’s a real possibility that Harris will also support broader reform measures to increase the number of justices on the Court, and to limit the number of justices each president can nominate.
The Washington Post reported on July 16 that Biden announced that he would soon unveil a Court reform plan during a Zoom call with the Congressional Progressive Caucus. Besides term limits and ethics rules, Biden was also reportedly considering whether to call for a constitutional amendment to undo the Court’s recent decision that granted near-absolute immunity to presidents.
It took quite a journey for Biden to get there. Democrats have been making a concerted push for Court reform for years, beginning in earnest after Republicans quickly filled former Justice Ruth Bader Ginsburg’s seat just before the 2020 election, despite having established a “precedent” in 2016 that Congress shouldn’t consider Court nominees in an election year, when they blocked Barack Obama’s nomination of Merrick Garland. Congressional Democrats famously adopted the line of “everything is on the table” after the Amy Coney Barrett confirmation.
But Biden steadfastly rejected these efforts, coming out against term limits as well as Court expansion in 2019, and again during his 2020 campaign. That changed last week, as the campaign struggled through a failed bid to convince the public that Biden isn’t too old for the presidency.
As a vice-presidential candidate, Harris in October 2020 refused to answer questions about whether she was in favor of adding seats to the Court, mindful of her role as Biden’s running mate. But the official position of Harris the presidential candidate is that she was open to term limits, as well as to adding justices to the Court.
Harris told voters during a 2019 campaign stop in New Hampshire that she was “open to this conversation about increasing the number of people on the United States Supreme Court,” for example. She also expressed that she would consider limiting the number of justices a single president can appoint.
As vice president, Harris has taken a more forceful tone than Biden in condemning some of the Court’s recent rulings.
The 2020 campaign, which included progressive stalwarts like Bernie Sanders and Elizabeth Warren, tended to pull candidates further to the left. And being “open to a conversation” or willing to consider something isn’t an ironclad guarantee.
But things are vastly different today, as demonstrated by Biden’s own recent willingness to consider the options he previously rejected. Casting the Court as a political rival to Democrats has obvious advantages in the age of Dobbs. And there are other indications that Harris will take a stronger position for Court reform.
As I noted earlier this week, the Court has made a remarkably sharp turn to the right, issuing a historic string of right-wing and Republican policy victories in case after case, even when there were no legal grounds to stand on.
At least 15 other Democrats who sought the party’s nomination in 2020 said they were open to or expressed outright support for implementing term limits and expanding the Court, according to a July 19 Washington Post report. That included a number of the other front-runners.
More recently, Democratic lawmakers have also introduced multiple Court reform measures in both chambers of Congress in recent months, including legislation to establish 18-year term limits, with new justices appointed every two years; a bill to create binding ethics rules, strengthen recusal requirements, and cap the value of gifts justices can receive; and a bill to expand the number of seats on the Court. Those measures have broad support, including among prominent Democrats and party leadership.
Democrats on the Senate Judiciary Committee also voted along party lines to advance legislation to impose a binding code of ethics in July 2023, before their Republican counterparts ultimately blocked the measure. The center of gravity in the party has shifted toward a position of taking action to rein in the Court, and the party’s new standard-bearer is likely to reflect this.
Those sentiments hold up outside of Congress too. Polls in recent years have also consistently shown that a majority of Americans disapprove of the way in which the Court is handling its job and believe that it should be reined in. And more recent polls show that a majority support reforms like adding more justices. A Marquette University Law School poll from October last year showed that 54 percent of Americans support increasing the number of justices on the Court, compared with 46 percent opposing it. Those numbers reflect the highest level of support for Court expansion since Marquette began asking questions about it.
In short, there is public support for a presidential platform that advocates for increasing the number of justices on the Court, and for Court reform generally. And the bulk of that support is among the Democrats who will comprise most of Harris’s voters.
Harris’s record offers other clues that she will likely take a stronger position on the issue.
Harris vigorously opposed and voted against confirming all three of Trump’s nominees to the Court, including Amy Coney Barrett, whose confirmation prominent Democrats have called “illegitimate.” And she made a (bigger) name for herself with her prosecutorial style of questioning the nominees.
As vice president, Harris has also taken a more forceful tone than Biden in condemning some of the Court’s recent rulings, and even some expected rulings.
Harris said in July 2023 that she believes “there is a national movement afoot to attack hard-won and hard-fought freedoms,” referring to the Court’s rulings that year which allowed businesses to reject LGBTQ customers, and ended affirmative action.
“This court has shown itself to be an activist court,” she said during an interview with The New York Times this past May, just two months ago. And Harris added a line that has now become a refrain in her campaign appearances, drawing attention to a recent opinion by Justice Clarence Thomas which shows that the Court may be on a path to overturning Americans’ rights to contraception and same-sex relationships.
“You could even look at Clarence Thomas saying a lot of the quiet part out loud,” she said. “Just look at one of the justices to see where they might go next.”
Altogether, that record should leave little doubt that Harris the presidential candidate will continue to push the reforms that the Biden-Harris campaign was slated to adopt. The growing public support for reform, and Harris’s own dire warnings about the Court’s future rulings, also suggest that she might be even more forceful in pushing for broader reform, including Court expansion.
At any rate, it certainly seems like an astute political move, given how widespread disapproval of the Court’s rulings and support for structural reform have become among Democratic voters and even moderates. All that’s left is for Harris to make the announcement.
