Following significant setbacks from the Supreme Court, President Joe Biden is determined to give the voters the ultimate decision-making power regarding his policies.
When his ambition to cancel or lessen federal student loan debts for millions was effectively quashed by the court’s conservative majority, Biden stated, “Republicans took away the hope that was offered.” After the justices abolished race-based affirmative action in college admissions, he remarked, “This isn’t an ordinary court.” When Roe v. Wade and a nationwide abortion right were reversed last year, Biden declared, “Voters need to voice their opinions.”
As he gears up for the 2024 election, Biden’s opposition includes not only the Republicans controlling half of Congress but also the conservative faction that holds sway in the nation’s highest court. This is a subtle yet important pivot in his stance towards the Supreme Court, treating it more as a political entity, albeit stopping short of suggesting a complete revamp.
This change is noticeable in everything from the administration’s communications to its legal tactics.
“While the president honors the court’s authority, if its decisions are to be political, and there are court members asserting so, he is obliged to clarify his stances and the steps he’s taking to address this,” stated Ron Klain, his former chief of staff.
“Numerous members of the current court testified that Roe is settled law yet still reversed it,” he added, referring to the court’s abortion ruling. “This has repercussions.”
Biden, former leader of the Senate Judiciary Committee, is placing emphasis on the court’s politicization as a strategy to rally voter support. Yet, he has steered clear of endorsing any radical changes to the court.
Rather, Biden is becoming increasingly outspoken about his perception that the court is veering away from mainstream constitutional interpretation. He urges voters that more Democratic representation in Congress and a Democratic presidency are needed to counterbalance the effects of a conservative-skewed court.
While Biden has seen victories, including on immigration, before a court where conservatives outnumber liberals 6-3, the setback on student loans capped a term marked by substantial hurdles placed by the justices.
White House insiders reveal that Biden is eager to explore alternative avenues to advance his key priorities and communicate to the American public about the challenges he’s facing.
“There’s a clear advantage in opposing the court as an institution since the court is passing decisions that are majorly unpopular and are hindering the president from implementing his agenda,” stated Chris Kang, chief counsel of the progressive group Demand Justice and a former deputy counsel to President Barack Obama.
“It’s crucial to highlight that the Supreme Court is making it exceedingly difficult to promote and enact policies that shouldn’t be controversial at all,” he added.
Republicans are aiming to paint Biden as overstepping his legal boundaries in his pursuit of his agenda. They argue that the Supreme Court’s rulings align with a significant portion of the country and are endeavoring to galvanize their own voter base by emphasizing the achievements made via court decisions.
At the recent Faith and Freedom Coalition conference in Washington, former President Donald Trump commended the three justices he nominated to the Supreme Court. “Exactly a year ago, those justices were the decisive votes in the Supreme Court’s groundbreaking decision to end the constitutional aberration known as Roe v. Wade,” Trump stated.
His comment that “conservatives had been attempting for 50 years,” to reverse the ruling, and that he was the one who “got it done when no one thought it was possible” was met with a standing ovation.
Other officials from the administration suggest that the court’s conservative predominance has lessened the political repercussions for Biden when the justices overturn some of his questionable legal actions, such as those on student loans and COVID-19 mandates. Regarding the latter, the Supreme Court negated Biden’s mandate for large company employees to get vaccinated but upheld it for healthcare workers, although by then the pandemic was already receding.
Klain affirmed that every proposal Biden has advanced had a robust legal foundation and had the approval of the Justice Department’s Office of Legal Counsel.
“There was never an approach of treating legal issues lightly or just ‘doing it and dealing with whatever the court decides,’” he said.
After the leaked draft opinion on the abortion case in 2022, public confidence in the Supreme Court plummeted to its lowest in at least 50 years. The court is mostly viewed favorably by Republicans at present.
Per the Pew Research Center’s report from September 2022, only 28% of Democrats and those leaning Democratic now view the court favorably, a nearly 40 percentage point drop since 2020. Moreover, the call for term limits is gaining traction among the U.S. population.
Positive perceptions of the court among Republicans and Republican-leaning individuals have risen to 73%. Consequently, the partisan divide is larger than at any point in the 35 years of Pew’s court-related polling.
For years, Republicans have prioritized the restructuring of the federal judiciary and Supreme Court. When Senator Mitch McConnell, R-K.Y., was the majority leader, he declined to meet in 2016 with Obama’s Supreme Court nominee — current Attorney General Merrick Garland, who was a federal judge at the time. The nomination was put on hold until a Republican president, Trump, assumed office.
Established GOP strategists supported Trump because of his promise to appoint as many judges as possible. Their gamble paid off, with Trump nominating three Supreme Court justices and 54 federal appeals court judges, effectively reshaping the courts for generations.
Democrats have now started to appreciate the influential role of judges in voting, and Biden has prioritized judicial nominations, appointing a record number of judges for a president at this stage in his first term, including some of the most diverse individuals yet to the judiciary. Biden’s team plans to emphasize these achievements during the reelection campaign, but they concede it’s a minor relief to their struggles with the high court.
Biden has been cautioning voters about potential future decisions by the Supreme Court, such as curtailing same-sex marriage rights or access to contraception.
“President Biden is communicating candidly with the American public about the high stakes of these extreme decisions that overturn decades of long-established precedents, affecting their fundamental rights and daily lives,” stated White House spokesperson Andrew Bates.
Biden’s reluctance to further reshape the Supreme Court stems partly from a historical perspective. Advocates for social change supported the court after landmark cases like Brown v. Board of Education and Roe v. Wade, upholding its autonomy as a means of progress. Backing away from that, particularly for a traditional Democrat like Biden, is challenging.
As Biden stated in an MSNBC interview, “I believe if we initiate the process to expand the court, we might politicize it permanently in an unhealthy manner.”
Leah Litman, a law professor at the University of Michigan and co-host of the “Strict Scrutiny” podcast about the Supreme Court, said that while Biden was unlikely to go to that extent, “there are various strategies that Democratic politicians could campaign on that would allow them to more explicitly counter the court.”
In addition to expanding the Supreme Court and the lower courts, she suggested options like restricting the Supreme Court’s jurisdiction over certain cases, instituting term limits, and implementing ethical changes.
All these, she said, are strategies the party could adopt “in acknowledging the court’s self-politicization.”