High Court Reform for Me but Not for Thee

Biden proposes his own reforms even as he sets himself against those he once opposed for, say, Israel.

Evan Vucci-Pool/Getty Images
President Biden speaks from the Oval Office on July 24, 2024. Evan Vucci-Pool/Getty Images

Is reforming a Supreme Court a foreshadowing of fascism or a tonic to what ails democracies? Forgive our confusion, which ratcheted up with President Biden’s announcement of his plan for the high court. Dismayed by the Nine’s conservative turn, he wants term limits for justices, an enforceable ethics code, and a constitutional amendment to bar immunity for former presidents. Not since FDR have such designs been hatched at the White House.

Mr. Biden has not always been so sanguine about court reform, especially when that court sits at Jerusalem. Last year, the Times’s Thomas Friedman devoted an entire column, running many thousands of words, to the 46th president’s opposition to Prime Minister Netanyahu’s proposals to make his country’s court less insulated from the popular will. Mr. Biden told Mr. Netanyahu “not to rush” his reforms. Meaning that he opposed reform.

The most significant of Mr. Netanyahu’s plans was to limit the Israeli Supreme Court’s ability to nix legislation on the basis of a “reasonableness” standard. They labeled as “extremely unreasonable” the accession of a minister, Aryeh Deri, to government, and barred him from serving. Never mind that voters sent him, and Mr. Netanyahu, to the Knesset. The court then swatted down a challenge to their own power. Shocker.       

Mr. Biden sided with the Israeli court against Mr. Netanyahu. Mr. Friedman could not recall an incident where “an American president has ever weighed in on an internal Israeli debate about the very character of the country’s democracy” — like Mr. Biden did.  NBC News called it “an unusually direct intervention by an American president.” Mr. Friedman explains that Mr. Biden summoned him for a discussion on the subject for more than an hour.    

Now, though, Mr. Biden is mounting a lame duck bull rush at his own country’s court. A White House spokesman explains that Mr. Biden seeks to “restore trust and accountability when it comes to the presidency and the United States Supreme Court.” In an op-ed in the Washington Post, the president decries what he calls the Roberts Court’s “dangerous and extreme decisions that overturn settled legal precedents.” Vice President Harris supports his efforts.

Mr. Netanyahu’s proposed reforms do not go nearly as far as Mr. Biden’s, which would involve imposing term limits of 18 years on justices who now enjoy life tenure. This is because the Constitution ordains that justices serve during “good Behavior.” Then again, too, Israel’s court is more powerful, relatively, than its American counterpart. So in effect Democrats have wheeled on our court with greater ferocity than Mr. Netanyahu has on Israel’s.

In a call a year ago between Messrs. Netanyahu and Biden, the White House noted that the president stressed the “need for the broadest possible consensus” for judicial reform. In this country though, mistrust of the court is a factional position — that of the left. A poll last year from Pew discloses a 40 point favorability gap in how Republicans and Democrats see the Supreme Court. Mr. Biden’s plans are for conquest, not consensus, on the Constitution. 


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