The Supreme Court is becoming a bigger issue in the unfolding presidential race between Vice President Kamala Harris and former President Donald Trump.
The nation’s highest court is always a hot-button issue in presidential races given the president’s power to appoint justices. But it is taking on added importance this year as Harris has become the likely Democratic presidential nominee in place of President Biden.
Biden’s decision to drop out of the race and endorse Harris as his successor means the Democratic ticket is almost certain to be led by a Black and Indian American woman. That puts a different sheen on debates over the conservative court’s impact on such issues as abortion and affirmative action.
Trump appointed three justices to the Supreme Court during his four years in office, and all three were part of the majority that struck down the Roe v. Wade decision. The November clash between Trump and Harris, who is trumpeting abortion rights in her campaign, will be the first since that decision.
Finally, Biden has proposed significant reforms to the court that Harris has embraced, providing a new area to debate the court’s role and power in American life that Democrats are eager to have.
“The vast majority of Americans see that something is deeply out of kilter at the Court,” said Alex Aronson, executive director of the liberal advocacy group Court Accountability.
Biden’s three-prong proposal would impose 18-year term limits on the nine justices, allowing for the sitting president to appoint a new justice every two years, and establish a binding code of conduct. It also calls for a constitutional amendment to partially overturn the high court’s recent decision on presidential immunity.
Supreme Court reform faces steep odds because of the need for legislative action. To pass a constitutional amendment, two-thirds of both the House and Senate must back the amendment, in addition to ratification by three-fourths of U.S. states.
House Speaker Mike Johnson (R-La.) has already said that legislation pushing the “radical” changes would be “dead on arrival” in the House.
Still, Harris’s backing of the plan underscores the advantage Democrats see in making a conservative Supreme Court mired in ethics scandals a big campaign issue.
The Supreme Court’s approval ratings have plummeted in recent years, landing at an all-time low of 38 percent last month, according to a Fox News poll conducted after the justices granted Trump some criminal immunity for his efforts to subvert the 2020 presidential election results.
That’s down 20 points from a high of 58 percent in March 2017 — before the confirmation of Trump’s three appointees, Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.
“Harris recognizes that it’s a winning issue,” said Dan Urman, a law and politics professor at Northeastern University.
Harris has expressed an openness to changes to the court in the past, in contrast to Biden, who has been more careful on the issue.
In 2019, Harris told Politico that “everything is on the table” to address the drooping confidence in the Supreme Court, from imposing term-limits to adding additional seats to the bench.
“We have to take this challenge head on,” she said at the time.
A campaign spokesperson previously told The Hill that Harris does not support expanding the court.
Republicans immediately pushed back on Biden’s proposal to reform the high court as a partisan effort to weaken the Supreme Court’s conservative majority.
Lawmakers called the plan “outrageous,” “lawless” and “dangerous,” while conservative judicial activist Leonard Leo, largely credited with heralding in the high court’s conservative supermajority, called the proposal an effort to “delegitimize” the high court.
The Republican National Committee wrote in an email blast aimed at Harris that she and other Democrats made the Supreme Court a “target” for issuing decisions with which they disagree.
“THAT’S a real threat to democracy,” the Monday email reads.
But Harris could be uniquely fit to deliver the Democrats’ message. While a senator, Harris served on the Senate Judiciary Committee, using her experience as a prosecutor to ask pointed questions of nominees, including Trump’s Supreme Court picks.
Court reform itself had not gained significant traction at the time, but Harris responded with “appropriate political aggressiveness and urgency” regardless, said Aronson, who was legal counsel to Sen. Sheldon Whitehouse (D-R.I.) on the committee during the time Harris served.
During Kavanaugh’s confirmation hearing, Harris grilled the nominee on issues ranging from whether he had discussed special counsel Robert Mueller’s investigation into Russian interference in the 2016 election with anyone to his stance on reproductive issues.
In one viral exchange, Harris probed whether Kavanaugh could think of any laws empowering the government to “make decisions about the male body.” Kavanaugh froze, before responding that he would answer a “more specific question.”
“Male versus female,” Harris plainly replied, prompting a response from Kavanaugh after some back and forth that he was “not thinking of any right now.”
Harris’s efforts to expand reproductive rights make court reform a “natural” fit for her presidential campaign, given the high court’s contentious decision to overturn Roe v. Wade two years ago that still reverberates across the nation, said Melissa Murray, a law professor at New York University whose research focuses on reproductive rights.
“She has, perhaps more than any other person in the administration, been stalwart on the issue of reproductive freedom,” Murray said.
The vice president, who has long supported abortion access, has evolved into the White House’s go-to voice on the matter. She toured the country at the start of the year to speak about “reproductive freedoms,” often taking aim at Trump for appointing the justices who established a conservative supermajority on the high court that eventually struck down long-standing federal abortion protections.
Putting court reform and reproductive rights side by side could play especially well with young people, who have been “agitating and advocating” for court reform, Murray said.
“They recognize that they were born in a world where they were assured of certain rights, and in one fell swoop and with one single opinion, that changed dramatically,” she said.
Though major reforms have not always been popular, experts agreed the basics of Biden’s proposal have wide approval. According to the Fox poll, 78 percent of Americans are in favor of limiting Supreme Court justices to an 18-year term.
A more recent YouGov poll found that enforcement of an ethics code is supported by 86 percent of Democrats and 62 percent of Republicans, while a cap on the time justices serve in the role was supported by 89 percent of Democrats and 56 percent of Republicans.
“These are very modest proposals that the Vice President has signed on to as part of her campaign,” Murray said.
If Harris does win the election, reforming the court could be vital to her ability to deliver on other campaign promises.
“If she’s serious about the policy priorities that she is trying to advance, she can’t pursue that agenda unless she also tackles the Court,” Aronson said.
