WASHINGTON (AP) — After major blows to his agenda from the Supreme Court, President Joe Biden intends to make sure voters have the final say.
When the court’s conservative majority effectively killed his plan to cancel or reduce federal student loan debt for millions, Biden said, “Republicans took away the hope 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 national abortion rights last year, the president said, “Voters need to make their voices heard.”
As Biden faces the 2024 election, he is running not only against Republicans who control 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 to the Supreme Court, treating it more like a political entity even if Biden isn’t calling for an overhaul.
This shift is evident in everything from the White House’s messaging to its legal strategy.
“The president respects the authority of the court, but if his rulings are going to be political and there are members of the court who say so, he owes it to the voters to make clear what his positions are and what he’s doing to address that,” said Ron Klain, his former chief of staff.
“Many members of the current court declared Roe to be settled law and still struck it down,” he added, referring to the court’s ruling on abortion. “This has its consequences.”
Biden, who chaired the Senate Judiciary Committee, is focusing on politicizing the court as a way to encourage voters to support him. However, he has not accepted any effort to make major changes on the track.
Instead, Biden has been increasingly vocal about his belief that the court is abandoning conventional 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 immigration, before a court where conservatives hold a 6-3 majority. But the student loan defeat capped a deadline when judges imposed significant hurdles.
White House officials say Biden is willing to explore other ways to pursue the same priorities and explain to the American people the obstacles.
“There’s only upside to running against the court as an institution because the court is doing things that are very unpopular and preventing the president from implementing his agenda,” said Chris Kang, chief counsel for the progressive group Demand Justice and another hit Deputy Advisor to President Barack Obama.
“I think it is important to make it clear that the Supreme Court prevents the implementation and advancement of 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 out of step with much of the country, and they’re trying to motivate their own voters by highlighting 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 appointed to the Supreme Court. “Exactly one year ago today, these justices were the pivotal votes in the Supreme Court’s landmark decision that ended the constitutional atrocity known as Roe v. Wade,” Trump said.
He received a standing ovation when he noted that “conservatives had been trying for 50 years” to overturn that ruling. “But I did it and no one ever thought it was a possibility.”
Other administration officials said the court’s conservative dominance has reduced the political cost for Biden as justices struck down some of his legally questionable actions, including student loan and coronavirus mandates. In the latter, the Supreme Court overturned Biden’s attempt to require employees of big companies to shoot themselves, but left the requirement for health care workers, even though by then the pandemic had begun to subside.
Klain insisted that everything Biden has presented 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 simply ‘doing it and taking what the court says,'” he said.
Confidence in the Supreme Court fell to its lowest point in at least 50 years after the draft opinion leaked on the 2022 abortion case. 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 Democratic-leaning independents now view the court favorably, up nearly 40 percentage points from 2020. And the American people increasingly favor the mandate limits.
Favorable views of the court among Republicans and those who lean Republican have increased to 73%. As a result, the partisan gap is wider than at any other time in Pew’s 35 years of surveying the court.
Republicans have focused for years on remaking the federal judiciary and the 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 judge federal at that time. The nomination stalled until a Republican president, Trump, took over.
Establishment GOP operatives backed Trump because of his promise to appoint as many judges as possible. His bet worked. Trump ended up with three Supreme Court nominees and 54 federal appeals court 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, appointing a record number of judges for a president at this point in his first term, including some of the most several so far. judicial power Biden aides plan to highlight those accomplishments during the re-election campaign, but acknowledge that it is only a small salve for his troubles on the high court.
Biden has begun warning voters about what else the Supreme Court might do in the future, whether it’s rolling back rights to same-sex marriage or access to contraception.
“President Biden is being direct with the American people about the stakes of these extreme decisions that overturn decades of longstanding precedent for their fundamental freedoms and their everyday lives,” the House spokesman said. White, Andrew Bates.
Part of Biden’s unwillingness to go further to reshape the Supreme Court comes from a sense of history. Those pushing for social change stood by the court after Brown v. Board of Education, an important civil rights case, and even Roe v. Wade, maintaining his autonomy as a way forward. Walking away from that, especially for an establishment Democrat like Biden, is not easy.
As Biden said in an interview on 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’s not healthy.”
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 it was unlikely that Biden would go that far, “there are a variety of things that politicians Democrats could lead. That would allow them to push back more explicitly against the court.”
In addition to expanding the size of the Supreme Court and/or lower courts, he said, other options include removing the Supreme Court’s jurisdiction over certain cases, establishing term limits and implementing ethics changes.
All, he said, are things the party could accept “as part of its recognition that the court has become politicised”.
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