The messages have been delivered publicly and privately by President Biden’s allies: He’s not attacking the Supreme Court hard enough.
In the two years since Biden took office, the court’s conservative majority has undermined or overturned abortion rights, affirmative action, gay rights, gun control and environmental regulation. He blocked the president’s agenda on immigration, student loans, vaccine mandates and climate change.
The recent rulings are blockbuster conservative victories that could help Democrats stir up anger among women, youth voters, environmental activists, Blacks, and members of the LGBTQ community as the president looks ahead to the 2024 election.
But despite mounting pressure, Biden has resisted an all-out attack on the Supreme Court itself or individual justices. He denounced the individual court decisions, but said he did not want to politicize the third branch of American democracy and risk undermining his authority forever.
The president’s approach falls short of what progressive activists and senior members of his own party have been calling for: to go beyond simply disagreeing with the court’s decisions and attacking it as an institution. He singles out his six conservative judges as corrupt MAGA Republicans who are in the pockets of special interests. You question the very legitimacy of the conservative court.
« He’s an institutionalist at heart, » said Brian Fallon, a Democratic activist who has campaigned for years to overhaul the Supreme Court. “I think politicians of his time continue to have respect for the court as an institution even if this current court, in its current composition, does not deserve such reverence. But old habits die hard.
A former senator who spent years presiding over Supreme Court nominations as chairman of the Judiciary Committee, Mr. Biden believes in the court’s potential as a force for good, according to people close to him. In his 2007 memoir, he speaks reverently of the court, quoting James Madison as he recounts the controversial fights he waged over Republican candidates in the 1980s and ’90s. He called recent Supreme Court decisions « extreme » and « outrageous, » but in a interview on MSNBCthe president would not call the court « undemocratic. »
“His value system is different,” Biden said, focusing on the court’s rejection of abortion rights. « And his respect for institutions is different. »
Examination of the Supreme Court’s decisions over the past two years has revealed what longtime observers say is a clear shift to the right, making it by one measure the most conservative court in nearly a decade. But despite several significant victories for the right last month, the court’s latest term also saw some liberal successes on the Voting Rights Act, immigration, the role of state legislatures in elections and Native American rights.
However, Biden’s allies back a forceful complaint from a court they consider wildly out of step with the country.
Some have suggested that the president focus on the intimate relationships between conservative judges and wealthy donors to define the court as corrupt. Others have pushed him to embrace term limits for judges. Adam Green, the co-founder of the Progressive Change Campaign Committee, has urged Democratic politicians to accuse the court of having a « crisis of legitimacy. »
“We would like to amplify anyone using this corruption/legitimacy message,” Green wrote to lawmakers a few weeks ago. « Do you think your office can turn this statement into public statements as decisions are made? »
Mr. Green shared with Democratic politicians data from private polls by Data for Progress, a progressive firm, which suggests there is support among the public for attacking the court as an institution. In their polls, 62% said the court was « increasingly facing a crisis of legitimacy ». Only 26% disagreed with this statement. The split was similar among independent voters.
« Criticizing the institution, if done in a high crescendo, hopefully gets the court on its best behavior in the future, » Green said.
The idea is gaining traction among some of the president’s key allies.
“The MAGA fanatic right has taken over the Supreme Court and has reached dangerous and regressive policies,” says Sen. Chuck Schumer of New York, the top Democrat in the house. Senator Sheldon Whitehouse, a Rhode Island Democrat and Judiciary Committee member, is ruthless in calling the judiciary « a captured court » that is « going crazy without recourse. »
Representative Nancy Pelosi, the California Democrat and former Speaker of the House, calls Justices Clarence Thomas and Samuel Alito by name, calling their actions « shameful » and saying the « Republican-controlled court » has achieved a « dark and extreme » for the country. She endorsed the idea of limiting the terms of Supreme Court justices.
There is some historical precedent for a president campaigning against the Supreme Court and its rulings.
Richard Nixon campaigned in 1968 against the court’s liberal criminal justice decisions under Chief Justice Earl Warren. Theodore Roosevelt denounced the court’s business rulings repeatedly during his 1912 campaign. Franklin Roosevelt fought a losing battle to expand the size of the court after judges began dismantling parts of his economic agenda.
« When the Supreme Courts are perceived as extreme or ideological, they can lead to political realignment and can become a defining issue in campaigns, » said Michael Waldman, president and chief executive officer of the Brennan Center for Justice at New York University School of Law. . “It hasn’t happened yet. But all the ingredients are there. »
During Mr. Biden’s 2020 campaign, many progressives urged him to consider dramatic Supreme Court reforms to counter the influence of its conservative members, including expanding the number of justices.
Not wanting to erase the concerns of progressives, Mr. Biden agreed to set up a commission to study the idea if elected. The group he created once in office produced a report that exposed deep divisions over the idea of increasing the number of justices to shift the balance of power, a move known as « stuffing the court. » But the group hasn’t commented on that idea or other potential actions, such as time limits.
Since the jury presented the report in late 2021, the president has made few public comments about it.
Mr. Waldman, who was a member of the president’s study committee, said progressives have largely given up on the idea of convincing Mr. Biden to support the courthouse expansion, because it is clear he opposes such an idea. . But Mr. Waldman said the president could be even more aggressive in the language he uses.
“There’s a long history of these issues being part of presidential dialogue and debate, and it would be a missed opportunity, I think, if President Biden doesn’t take it,” he said.
But Mr. Biden is apparently unwilling to go there, to the frustration of some members of his own party.
« His heart is not in it, » said Jeff Shesol, speechwriter for former President Bill Clinton and author of « Supreme Power: Franklin Roosevelt vs. the Supreme Court. »
« He is clearly outraged by the decisions this court is making, » said Mr Shesol. “He was never that guy. As angry as he certainly is about these decisions, he’s intent on getting away with it.
White House officials say Biden has demonstrated his willingness to criticize the court’s rulings on abortion, affirmative action and other ruptures with long-standing legal precedents. And they said she is aggressively appointing a number of different judges to the federal bench, including the first black woman to the Supreme Court.
Officials have promised it will continue as Biden seeks a second term.
« President Biden is assembling a diverse coalition behind protecting the basic rights of the American people, » said Andrew Bates, White House spokesman. « He is making a forceful case, with which the majority of the country and the Democrats in Congress agree, against what he calls the ‘extreme’ and ‘outrageous’ behavior of a court that is increasingly undermining institutions by ruling from the bench. »
There have been a few recent moments when the president seemed to be flirting with a more aggressive stance on the court.
After six conservative justices voted last month to eliminate the use of affirmative action by colleges and universities, a reporter wanted to know if Mr. Biden thought the Supreme Court had gone rogue.
« This, » the president said after reflecting for a moment, « is not an ordinary court. »
It looked like it could be the beginning of what some of the president’s supporters had been calling for. In conversations with White House officials, Mr. Green had been told the president would not question the court’s legitimacy, but he remained confident that saying the court is not « normal » was also a step in the right direction.
« It will be in the history books, » Mr. Green said of the president’s comment.
But a few hours later, Mr. Biden clarified what he meant and what he didn’t. He didn’t want to over-politicize the court, he told Nicolle Wallace in an MSNBC interview. He was only focused on judges’ decisions that he disagreed with, such as their far-reaching rejection of abortion rights.
“What I meant by that is that it has done more to unveil fundamental rights and key decisions than any court in recent history,” Biden said. « And that’s what I meant by ‘not normal.' »