by WASHINGTON (AP) — After major blows to his agenda by the Supreme Court, President Joe Biden plans to make sure voters have the final say.
When the court’s conservative majority effectively quashed his plan to cancel or reduce federal student loan debt for millions of people, Biden said, “The Republicans snatched away the hope they had been given.” When the judges 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.”
As Biden heads toward the 2024 election, he’s taking on not only the Republicans who control half of Congress, but also the conservative bloc that dominates the nation’s top court. It’s a subtle but important shift in the Supreme Court’s approach, treating it more like a political entity, even though Biden isn’t calling for a review.
That shift is evident in everything from White House reporting to legal strategy.
“The president respects the authority of the court, but if the rulings are political and there are members of the court saying so, he owes it to voters to make his views clear and what he is doing to address it. ‘ said Ron Klain, his former chief of staff.
“Many members of the current court have testified that Roe is an established law and yet overturned it,” he added, referring to the court’s ruling on abortion. “That has its consequences.”
Biden, who once headed the Senate Judiciary Committee, is targeting the politicization of the court as a way to encourage voters to support him. Yet he has not embraced any attempt to make major changes to the court.
Instead, Biden is increasingly vocal about his belief that the court is moving away from mainstream constitutional interpretation. He tells voters they need more Democrats in Congress and a Democrat in the White House to counter the influence of the conservative-leaning court.
Biden has won his share of cases, including on immigration, in a court where conservatives have a 6-3 majority. But the student loan defeat capped a term as judges imposed significant roadblocks.
White House officials say Biden is eager to explore other ways to pursue the same priorities and explain the obstacles to the American people.
“Going against the court as an institution only benefits because the court does things that are wildly unpopular and they prevent the president from executing his agenda,” said Chris Kang, lead attorney for the progressive group Demand Justice and a one-time advocate. deputy counsel to President Barack Obama.
“I think it’s important to make it clear that the Supreme Court makes it impossible to implement and advance policies that shouldn’t be subject to controversy,” he added.
Republicans are trying to portray Biden as exceeding his legal authority in pursuing his agenda. They say the Supreme Court’s policy is in line with much of the country and they are trying to motivate their own voters by emphasizing what the GOP has accomplished through court rulings.
Former President Donald Trump, at the recent Faith and Freedom Coalition conference in Washington, praised the three justices he had nominated for the Supreme Court. “Exactly one year ago today, those justices were pivotal in the landmark Supreme Court decision that ended the constitutional atrocity known as Roe v. Wade,” Trump said.
He received a standing ovation for noting that “conservatives have been trying for 50 years” to overturn that statement. “But I pulled it off and no one ever thought it was a possibility.”
Other government officials said the court’s conservative dominance has reduced the political costs for Biden as the judges sink 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 major corporations to receive injections, but left the requirement for healthcare workers, even though by then the pandemic had begun to subside.
Klain insisted that everything Biden put forward had a solid legal basis and was approved by the Justice Department’s Office of Legal Counsel.
“There was no point in taking the legal issues lightly or just ‘do it and accept what the court says’,” he said.
Confidence in the Supreme Court fell to the lowest point in at least 50 years after the leaked draft advice in the abortion case in 2022. Those who take a positive view of the current court are largely Republican.
According to the September 2022 Pew Research Center report, only 28% of Democrats and Democratic independents now favor court, a drop of nearly 40 percentage points since 2020. And people in the United States are increasingly favoring terms.
Positive views of the court among Republicans and those leaning Republican has risen to 73%. As a result, the partisan divide is wider than at any other time in the 35 years of polls Pew has conducted on the court.
For years, Republicans have focused on reforming the federal judiciary and Supreme Court. When Senator Mitch McConnell, RK.Y., was the majority leader, he even refused to meet Obama’s Supreme Court pick in 2016 — current Attorney General Merrick Garland, a federal judge at the time. The nomination stalled until a Republican president, Trump, took over.
Established GOP operatives backed Trump for his pledge to appoint as many judges to the bench as possible. Their gamble worked. Trump ended up with three Supreme Court nominees and 54 federal appeals judges, reshaping the courts for a generation.
Democrats now finally understand the power of judges as a voting tool, and Biden has made judicial nominations a priority by appointing a record number of judges for a president at this point in his first term, including some of the most diverse choices to date. judicial power. Biden aides plan to highlight this achievement during the re-election campaign, but acknowledge that it is only a small salve for their troubles on the Supreme Court.
Biden has warned voters about what else the Supreme Court might do in the future, whether it’s reversing same-sex marriage rights or accessing birth control.
“President Biden is directly with the American people on the stakes of these extreme decisions that jettison decades of longstanding precedents for their fundamental freedoms and their daily lives,” said White House spokesman Andrew Bates.
Part of Biden’s reluctance to move forward to reshape the Supreme Court stems from a sense of history. Those pushing for social change backed the court after Brown v. Board of Education, a major civil rights case, and even Roe v. Wade, which upheld her autonomy as a way forward. Stepping away from that, especially for an established Democrat like Biden, is not easy.
As Biden said in an interview with MSNBC, “I think if we start the process of expanding the court, maybe we’ll forever politicize it in a way that’s not healthy.”
Leah Litman, a law professor at the University of Michigan and co-host of the Supreme Court podcast “Strict Scrutiny,” said that while Biden was unlikely to go that far, “there are a variety of things that Democratic politicians could perform. they would, in fact, be able to argue more explicitly against the court.”
In addition to increasing the size of the Supreme Court and/or lower courts, she said, other options include stripping the Supreme Court of jurisdiction over certain cases, setting time limits and making ethical changes.
All, she said, are things the party could embrace “as part of their admission that the court has politicized itself.”
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