How a Kamala Harris Presidency Could Change the Supreme Court

If Vice President Kamala Harris, the Democratic nominee, is elected president, her U.S. Supreme Court options could be limited, legal experts recently told Newsweek.
If Harris wins this year’s election against former President Donald Trump, the GOP nominee, 70-year-old Supreme Court Justice Sonia Sotomayor, who was nominated by President Barack Obama, may retire to allow a young liberal to take her place. However, Sotomayor may not want to lose her place on the Court and Harris would lose her one chance at a Supreme Court nomination.
Los Angeles-based attorney John Perlstein told Newsweek that he believes Sotomayor will want to remain on the Court.
“If Harris is elected, I do not foresee any retirements from the Supreme Court. Sotomayor is capable and appears a lot younger than her age, therefore there is no reason for her to go anywhere,” he said. “The conservative justices would hold on under the Harris administration, barring any unforeseen health issues.”
The current Supreme Court has a 6-3 conservative majority.
Perlstein added that the Biden-Harris plan for Supreme Court reform will likely not come to pass without Democratic control of Congress.
In July, President Joe Biden announced proposals for Supreme Court reform that include term limits and binding ethical rules that would prevent justices from taking gifts from donors. Such calls have been driven by a slew of controversies involving conservative Justices Samuel Alito and Clarence Thomas who have both been accused of accepting luxury gifts and vacations from wealthy GOP donors without properly disclosing them on federal financial forms.
Biden said that the proposed changes aim to restore public trust in the Court and ensure accountability, and also cited the Supreme Court’s historic 6-3 decision on July 1 to grant presidents broad immunity from prosecution for crimes they commit in office. The controversial ruling distinguished between a president’s official and unofficial actions while in office.
Biden said the ruling, which was made in relation to Trump’s federal election interference case, means that “there are virtually no limits on what a president can do.”
The Court did adopt its first code of ethics in November 2023, which mimicked many of the standards to which lower court judges are held. However, Democrats have said the code does not go far enough, given that there is no outside body to hold justices to its standards.
In announcing the proposals, Biden conceded that it would need congressional approval and said he looked forward to working with Congress to pass the required legislation. Harris, meanwhile, backed the president’s proposal.
Perlstein told Newsweek that the proposals are unlikely to become law, even if Harris wins the presidency.
“Unless there’s a Democratic President and a Democratic majority in both the House of Representatives and the Senate, then you will not see any Supreme Court reform,” he said.
Greg Germain, a law professor at Syracuse University in New York, agreed that a Harris presidency had little chance of reforming the Supreme Court.
“Biden’s proposal was political theater and had no chance of going anywhere. I don’t think that will change in this election because the country remains so divided,” he told Newsweek.
He added that Sotomayor, the oldest liberal justice on the Court, may retire if Harris is elected president.
“Sotomayor might resign and has had health problems if a Democrat is elected. I don’t see any of the others thinking about resigning, as they seem to enjoy their roles, and are quite vigorous. So absent deaths, which are difficult to predict, I don’t see a power shift,” Germain said.
New York University law professor Stephen Gillers told Newsweek that Democrats will be keen to avoid another Ruth Bader Ginsburg scenario.
Bader Ginsburg, who was one of the most liberal Supreme Court justices, refused to retire during eight years of the Obama presidency. She died at 87 years old in the final two months of Trump’s presidency allowing him to nominate conservative justice Amy Coney Barrett to replace her on the Court.
Gillers said that no Supreme Court justice wants to be remembered “as a justice who ‘hurt the cause’ by staying on too long, which is how Ruth Ginsburg is sometimes remembered.”
He also said that the Biden-Harris term limit proposal won’t happen.
“There is no chance of imposing term limits on the justices, which requires a constitutional amendment. Senator [Sheldon] Whitehouse has proposed some ways around that but even his proposal would require 60 senators,” Gillers said.
In July, Biden said he supports an updated system in which the president would appoint a justice every two years to spend 18 years in active service on the Court, noting that the United States is the only major constitutional democracy that gives lifetime seats to its high court.
Bina Ahmad, a Los Angeles-based civil rights and criminal defense attorney, told Newsweek that it was unlikely that Harris could introduce new Supreme Court ethical rules.
“Judges on the Supreme Court are bound by no enforceable ethics standards, and federal judges in general including the Supreme Court have almost no oversight or incentive to follow ethics rules as they have lifetime appointment. This gives federal judges impunity to do as they please and be accountable to no one. Having an untouchable judiciary is the opposite of what democracies demand.”