WASHINGTON – After major blows to his agenda by the Supreme Court, President Joe Biden is intent on making sure voters will have the final say.
When the court's conservative majority effectively killed his plan to cancel or reduce federal student loan debts for millions of people, Biden said, “Republicans snatched away the hope that they were given.” When the justices ended race-based affirmative action in college admissions, he said, “This is not a normal court.” When they overturned Roe v. Wade and a national right to abortion last year, the president said, “Voters need to make their voices heard.”
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As Biden heads into the 2024 election, he is running not only against the Republicans who control one-half of Congress but also against the conservative bloc that dominates the nation's highest court. It's a subtle but significant shift in approach toward the Supreme Court, treating it more like a political entity even as Biden stops short of calling for an overhaul.
That shift is becoming apparent in everything from the White House's messaging to its legal strategy.
“The president respects the court’s authority, but if its judgments are going to be political and there are members of the court who are saying that, he owes it to voters to make it clear what his positions are and what he’s doing to address it,” said Ron Klain, his former chief of staff.
“Many members of the current court testified that Roe is settled law and still overturned it,” he added, referring to the court's ruling on abortion. “That has its consequences.”
Biden, who once led the Senate Judiciary Committee, is focusing on the politicization of the court as a way to encourage voters to back him. Yet he has not embraced any effort to make big changes to the court.
Instead, Biden is increasingly vocal about his belief that the court is abandoning mainstream constitutional interpretation. He tells voters they need more Democrats in Congress and a Democrat in the White House to counter the impact of the conservative-leaning court.
Biden has won his share of cases, including on immigration, before a court where conservatives hold a 6-3 majority. But the student loan defeat capped a term when justices imposed significant roadblocks.
White House officials say Biden is keen to explore other ways to pursue the same priorities and explain to the American people about the obstacles.
“There’s only upside in running against the court as an institution because the court is doing things that are wildly unpopular and they’re preventing the president from implementing his agenda,” said Chris Kang, chief counsel of the progressive group Demand Justice and a onetime deputy counsel to President Barack Obama.
“I think that it’s important to make clear that the Supreme Court is making it impossible to implement and advance policies that should not have any controversy attached to them,” he added.
Republicans are working to portray Biden as overstepping his legal authority in pursuit of his agenda. They say the high court's policies are in step with much of the country and they are trying to motivate their own voters by highlighting what the GOP has achieved through court rulings.
Former President Donald Trump, at the recent Faith and Freedom Coalition conference in Washington, praised the three justices he had nominated to the Supreme Court. “Exactly one year ago today, those justices were the pivotal votes in the Supreme Court’s landmark decision ending the constitutional atrocity known as Roe v. Wade,” Trump said.
He drew a standing ovation by noting that “conservatives had been trying for 50 years,” to overturn that ruling. “But I got it done and nobody ever thought it was a possibility.”
Other administration officials said the court’s conservative dominance has lowered the political cost to Biden when the justices scuttle some of his legally suspect actions such as on student loans and coronavirus mandates. On the latter, the Supreme Court struck down Biden’s attempt to require employees of large companies to get shots but left the requirement in place for health care workers, though by that time the pandemic had started to wane.
Klain insisted that everything Biden has put forward had a solid legal basis and was approved by the Justice Department's Office of Legal Counsel.
"There was no sense of taking the legal issues lightly or just ‘do it and take whatever the court says,’' he said.
Confidence in the Supreme Court fell to its lowest point in at least 50 years after the leaked draft opinion in the abortion case in 2022. Those who view the current court favorably are largely Republican.
According to the Pew Research Center’s September 2022 report, only 28% of Democrats and Democrat-leaning independents now view the court favorably, down nearly 40 percentage points since 2020. And people in the United States increasingly favor term limits.
Positive views of the court among Republicans and those who lean Republican has increased to 73%. As a result, the partisan gap is larger than at any other point in the 35 years of polling that Pew has done on the court.
Republicans have focused for years on remaking the federal judiciary and Supreme Court. When Sen. Mitch McConnell, R-K.Y., was the majority leader, he refused to even meet in 2016 with Obama’s pick for the high court — current Attorney General Merrick Garland, a federal judge at that time. The nomination stalled until a Republican president, Trump, took over.
Establishment GOP operatives backed Trump because of his pledge to name as many judges to the bench as possible. Their gamble worked. Trump ended up with three Supreme Court nominees and 54 federal appeals court judges, reshaping the courts for a generation.
Democrats are now finally understanding the power of judges as a voting tool, and Biden has made judicial nominations a priority, appointing a record number of judges for a president at this point in his first term, including some of the most diverse picks yet to the judiciary. Biden aides plan on highlighting those accomplishments during the reelection campaign, but acknowledge it’s only a small salve to their troubles at the high court.
Biden has taken to warning voters about what else the Supreme Court might do in the future, whether rolling back same-sex marriage rights or access to contraception.
“President Biden is being direct with the American people about the stakes these extreme decisions that jettison decades of longstanding precedent have for their fundamental freedoms and their daily lives," said White House spokesman Andrew Bates.
Part of Biden’s unwillingness to go further to reshape the Supreme Court comes from a sense of history. Those pushing social change stood by the court after Brown v. Board of Education, a major civil rights case, and even Roe v. Wade, holding up its autonomy as a way to push forward. Backing away from that, particularly for an establishment Democrat like Biden, is not easy.
As Biden said in an interview with MSNBC, “I think if we start the process of trying to expand the court, we’re going to politicize it maybe forever in a way that is not healthy,”
Leah Litman, a professor of law at the University of Michigan and co-host of “Strict Scrutiny” podcast about the Supreme Court, said that while Biden was unlikely to go that far, “there are a variety of things that Democratic politicians could run on that would actually allow them to more explicitly push back against the court."
Besides expanding the size of the Supreme Court and or the lower courts, she said, other options include stripping the Supreme Court of jurisdiction over certain cases, setting term limits and implementing ethics changes.
All of them, she said, are things the party could embrace "as part of their recognition that the court has politicized itself.”
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