The fate of Biden’s Supreme Court proposal may lie with Kamala Harris

Vice President Kamala Harris is embracing President Joe Biden’s call to revamp the Supreme Court.

Like her boss, it’s the first time she has ever endorsed structural changes to the court. But there are small signs that, if elected president, Harris would prioritize the issue more forcefully than Biden ever has.

Unlike Biden, who flatly rejected term limits for the justices when he was a presidential candidate in 2019, Harris said at the time that she was open to the idea. She even professed openness to a more radical proposal: expanding the size of the court.

And now, as she settles into a 100-day sprint against Donald Trump, one of the top campaign aides at her side is Brian Fallon, a leading voice on the left for court expansion and other overhauls.

“Do I think Vice President Harris will embrace court expansion as a policy priority? I’m not so sure about that,” said Alex Aronson, the executive director of Court Accountability, a liberal advocacy group.

But Aronson added that the presence of Fallon and other Senate Judiciary Committee veterans on Harris’ staff suggests that she is poised to tackle the “hard politics” of reining in a court that is both ideologically conservative and mired in ethics controversies.

Harris wasn’t particularly vocal on the subject during her four years in the Senate. Nor has it been an explicit part of her portfolio as vice president.

Still, critics of the court are cautiously optimistic that Harris, as president, would at least be a stronger ally than Biden, who slow-walked the issue for three and a half years. This week, he reversed his prior position and endorsed term limits and other changes — but the proposal from a lame-duck president is virtually certain to go nowhere in a divided Congress this year.

So, for advocates who want to reshape the court, the more important question is whether Harris, if elected, would spend immediate political capital on the issue. And to some extent, their hopefulness — like so much else in this election — comes down to her age.

“I think the younger generations are more skeptical of SCOTUS power and believe that there are more things that can be done to ensure that more of the power in this country is held by the people, and not by nine folks in robes,” said Gabe Roth, the executive of Fix the Court, a nonpartisan group that supports term limits and stricter ethics rules for justices.

Lighting — and passing — a torch

Throughout his presidency, Biden has faced calls from liberal members of his party to aggressively confront the Supreme Court as it has shifted the law to the right on issues like abortion, guns, religion and the environment.

He appointed a commission to study potential changes to the court, but did little else on the issue — until Monday, when he unveiled a three-pronged plan. In a Washington Post op-ed and a speech in Austin, Texas, the president called for an 18-year cap on justices’ “active service,” a binding code of conduct for the justices, and a constitutional amendment to overturn the court’s recent decision in Trump v. United States granting presidents broad immunity from criminal prosecution for “official acts.”

Harris did not join Biden at his speech at the Lyndon Baines Johnson Presidential Library, but she issued a written statement supporting the administration’s new position.

“There is a clear crisis of confidence facing the Supreme Court as its fairness has been called into question after numerous ethics scandals and decision after decision overturning long-standing precedent,” Harris said. “These popular reforms will help to restore confidence in the Court, strengthen our democracy, and ensure no one is above the law.”

All three proposals, however, face formidable obstacles before they could be enacted.

The constitutional amendment would need the approval of two thirds of both chambers of Congress and three quarters of the states — a prospect that seems inconceivable in a polarized nation.

The other two changes would, at a minimum, require legislation — which would likely face a filibuster in the Senate under current rules. And even clearing that hurdle might not be enough. The term limits proposal arguably conflicts with the Constitution’s guarantee that justices serve during “good behavior.” As for the code of conduct, some experts — including Justice Samuel Alito — have suggested that Congress has limited authority to supervise the conduct of the justices.

Speaker Mike Johnson branded Biden’s proposals as “dead on arrival.”

But advocates of structural changes to the Supreme Court hope Biden’s announcement will lay the groundwork for a more sustained effort by the next Democratic president.

“He’s lit a torch here, and he’s handing it off to Vice President Harris to really run with it,” said Jake Faleschini, the program director of justice at Alliance for Justice, a liberal judicial advocacy organization.

A limited record on Supreme Court issues

Even as they expressed optimism that Harris would take up the issue, supporters of an overhaul could point to few specific efforts she has made in the past.

Sen. Sheldon Whitehouse (D-R.I.), the Senate’s harshest critic of the Supreme Court, said he has long seen Harris as receptive to his reform efforts. But he viewed her latitude as limited given Biden’s previous stance opposing significant changes.

“Her staff and mine have been in touch through the administration — off and on, I would say — because I saw her as an ally who could be willing to take a more aggressive position on the judiciary issues we were dealing with,” Whitehouse told reporters Monday.

During the four years Harris served in the Senate before she became vice president, there’s no indication of her taking a special interest in legislation related to the Supreme Court, although as a member of the Judiciary Committee she aggressively questioned Trump’s three high-court nominees.

In 2019, while running for the Democratic presidential nomination that Biden eventually won, Harris said she was willing to entertain a major overhaul to the court.

“We are on the verge of a crisis of confidence in the Supreme Court,” Harris told POLITICO at the time, adding that “everything is on the table,” including expanding the number of justices via legislation.

Harris also co-sponsored bills introduced by Sen. Chris Murphy (D-Conn.) in 2017 and 2019 aimed at forcing the Supreme Court to adopt a code of conduct for ethics.

“To safeguard public confidence in the integrity of our system, Supreme Court justices must be held to the highest standards of conduct,” Harris said in a press release announcing her support for the 2019 measure.

Neither bill got a hearing.

The court finally adopted a code of conduct last fall, giving in to considerable pressure from Congress and appearing eager to stanch a series of unflattering media reports. But the code has no enforcement mechanism — the justices determine for themselves how to comply with it.

Court activist becomes campaign aide

The movement to revamp the Supreme Court intensified after the 2020 election, when Harris was elected as vice president and left the Senate.

Among the most outspoken groups in that movement is a nonprofit advocacy group called Demand Justice. In contrast with groups that have focused on relatively moderate changes like term limits and ethics enforcement, Demand Justice urged Democrats to expand the size of the Supreme Court so that Biden could appoint new liberal justices and “rebalance” the conservative shift created by Trump’s three appointees. It also took other aggressive positions, such as a campaign to pressure former Justice Stephen Breyer to retire so that Biden could appoint his replacement.

Demand Justice was co-founded by Fallon, a former press secretary for Hillary Clinton’s 2016 presidential campaign. After five years at the organization, he stepped down last year to join the Biden campaign as Harris’ communications director, and he remains a key aide now that Harris is expected to be at the top of the ticket in November.

“The thing we tried to instill at Demand Justice is that the courts are just not on the level anymore and are making decisions based on politics, not on law,” said Christopher Kang, a former Obama White House counsel’s office lawyer who served as the group’s chief counsel alongside Fallon. “I don’t imagine Vice President Harris hired Brian because of his work just on the courts, but … the debate has come light years — much faster than I could have imagined.”

Kang also cited Harris’ more “forward-leaning” stance on the issue during the 2020 campaign and said he’s hopeful that, as the campaign unfolds, she will go even further than Biden did.

“This is now the floor for what Democrats think we need with the Supreme Court,” he said.