US President Joe Biden has called for reforms to change the Supreme Court in order to make it more independent.
Nine Justices serve on the country’s highest court. Once appointed, there is no fixed term for these officials. That means they can serve the court until their death.
However, Biden says these lifetime appointments have contributed to deepening cynicism about the “fairness“ of the court. This includes concern over recent decisions about abortion protections and Presidential immunity.
US Supreme Court
When the U.S. gained independence from Britain and became a republic, national decision-making powers were split across the judiciary (courts), executive (President), and legislature (Congress).
The country’s founding document, the Constitution, stated the Supreme Court would be the country’s highest court.
As the top court in America, all of its decisions are binding and can’t be appealed.
Justices
There are nine Justices on the Supreme Court.
While the Constitution does not expressly require a Justice to have a law degree, every appointee since 1942 has been a law graduate.
When a judge retires or dies, the serving President chooses a candidate to replace them.
Before they can be appointed to the court, a majority of the 100-member U.S. Senate must confirm that candidate.
Life term
Justices can sit on the Supreme Court until they die (e.g. Ruth Bader Ginsburg, who was a Justice until her 2020 death.)
The U.S. Constitution states Justices can serve “during good Behaviour” but this condition remains open to interpretation.
For example, Clarence Thomas – the longest-serving of the current Justices – was accused of failing to declare expensive gifts from Republican donors. Despite this, he continues to serve.
Justices today
At present, the U.S. Supreme Court is made up of six Republican-appointed judges and three chosen by Democratic presidents.
Unless a Justice voluntarily steps down from their position or dies, they can only be removed through an impeachment motion.
This requires support from the majority of the House and two-thirds of the Senate, and has happened once, in 1805.
By contrast, judges in Australia’s equivalent – the High Court – can’t serve past 70 years old.
Recent decisions
The Supreme Court has faced criticism over several recent decisions.
In 2022, the Court overturned Roe v. Wade, a previous judgement that had guaranteed national abortion protections. Since then, 22 states have blocked or partially blocked access to abortions.
Earlier this month, it ruled that U.S. presidents are immune from criminal wrongdoing while performing official duties. This has created new challenges for prosecutors in some of Donald Trump’s legal trials.
Joe Biden
This week, President Joe Biden called for the US Supreme Court to change.
In an opinion piece for U.S. newspaper The Washington Post, he wrote, “We can and must strengthen the guardrails of democracy… and restore the public’s faith in our judicial system.”
Biden proposed three major reforms:
1. Term limits for Justices
2. A binding code of conduct for Justices, rather than a voluntary ethics rulebook
3. Changing the Constitution to overrule the Court’s presidential immunity decision
Biden argued the proposed reforms would help address historically low confidence in the U.S. Supreme Court.
The Pew Research Center, a Washington-based think tank, has tracked favourability ratings for the Supreme Court since 1987.
For the first time, it found a majority of Americans (54%) had an unfavourable view of the Supreme Court in July 2023 — a year after Roe v. Wade was overturned.
Will the court change?
Biden’s proposals couldn’t be implemented without Constitutional changes.
Similarly to Australia, the U.S. does not often change its constitution.
In the U.S., reforms must be agreed to by two-thirds of its House and Senate, and then approved by three-quarters of its 50 state governments.
Therefore, given the fairly even Republican-Democrat split across federal and state governments, any short-term changes to the Supreme Court are unlikely.
