Joe Biden has long resisted calls from his party to go full blast on the Supreme Court. After rulings this week that upended Democratic priorities, he’s getting closer but still isn’t ready to pull the trigger.
Following Thursday’s Supreme Court rulings that eviscerated affirmative action in college admissions, the president took several swipes at the court in terms notably hostile for him. The current court, he told reporters, was not “normal.” Later, he would tell MSNBC that its “value system is different.”
The dual responses did not match the brimstone and fury that came from elsewhere in the Democratic Party, where lawmakers called for a drastic overhaul of the nation’s top court in light of the affirmative action ruling. And after the court ruled against his executive action granting student loan relief, he knocked the decision but didn’t go off on the court like other high-ranking Democrats.
Still, the responses did move Biden incrementally closer to his party’s base, even pleasing some of the progressive activists who have pushed him to adopt hardline changes to the court — and who will be a key part of any successful coalition for him in the 2024 presidential election.
“The most encouraging comment from the president was the unscripted one,” said Brian Fallon, who as executive director of progressive judicial issues group Demand Justice has been constantly needling the White House to back a liberal plan to add seats to the Supreme Court. “My advice would be to work that into the main message.”
Biden made clear on Thursday that he remains unwilling to go where others in his party are, swatting away the idea of packing the court in his interview with MSNBC. “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,” he said.
But the totality of his responses, coming at a time when the court is under heightened scrutiny and increasingly distrusted, suggested a politician inching closer in rhetoric to the activist camp, at least according to those who Biden himself has entrusted with such an endeavor. Former U.S. District Judge Nancy Gertner, who served on the president’s commission examining potential changes to the Supreme Court, said that Biden’s comments Thursday were “certainly strong for him.” That he refused to trash the court as illegitimate, she added, was not surprising. It kept with his central political identity.
“If the public doesn’t respect the decisions that the court is handing down, we really are all in trouble,” said Gertner, who has urged Biden to support adding extra seats to the court. “He is walking a line that is an appropriate line to walk: ‘I don’t like these decisions. I disagree, but I am not going to characterize the court.’”
“This is consistent with who he is,” she added.
Biden’s guarded criticism comes at a unique moment of scrutiny for the high court. The overturning of Roe v. Wade last summer led to better-than-expected midterms for Democrats, and Biden’s own reelection campaign is planning to make central a promise to codify abortion protections nationally. And recent reporting scrutinizing Justices Samuel Alito and Clarence Thomas’ ties to prominent conservative billionaires has amplified calls from Democratic lawmakers for wholesale overhauls of the court.
The structure and composition of the court has remained one of several points of contention between Biden and his base, with the president often occupying the role of institutionalist loath to challenge the legitimacy of another branch of government inside a party increasingly hellbent on getting him to do so.
Biden — who started his career as an attorney before chairing the Senate Judiciary Committee in the late 1980s and early 1990s — has long sought to avoid the perception that he would challenge the independence of the Supreme Court. And on the 2020 campaign trail, he ducked and dodged the issue of expanding the Supreme Court, even as his primary competitors and fellow Democrats expressed openness to it or even embraced it.
“Action and reaction, anger and more anger, sorrow and frustration at the way things are in this country now politically,” Biden said during a September 2020 speech, where he was trying to discourage Republicans from confirming a replacement for the late Justice Ruth Bader Ginsburg in the waning weeks of the campaign. “We need to de-escalate, not escalate.”
Republicans did not heed that plea. And as they moved closer to ultimately confirming Amy Coney Barrett, Biden chose another middle-road option: Instead of promising retribution, he pledged to roll out the commission of scholars to study changes to the court system.
The commission was viewed in Democratic circles as a classic Washington punt. When its report came together in December 2021, it stopped well short of any sweeping recommendations like adding additional justices or advocating for term limits. It instead endorsed a code of conduct for justices and advocated for the court to continue live streaming audio for its oral arguments. The relatively modest scope of the report was quickly brushed aside in Washington, frustrating even some of the members.
Asked about the report on Thursday, White House press secretary Karine Jean-Pierre told reporters traveling on Air Force One that Biden has “read” it. She disputed the idea that “it’s sitting on the shelf and collecting dust.” But, she added, she did not have “any additional steps to move forward on” to announce.
The Biden campaign declined to comment for this story. The White House, meanwhile, has largely avoided speaking publicly about recent reporting from ProPublica that detailed Thomas’ close relationship with a billionaire Republican donor, and Alito’s vacation with a different billionaire.
When Dobbs was first decided, some progressives criticized Biden’s response as insufficient. Biden signed several executive orders related to abortion and reproductive health but declined to act on others, such as a plan by progressives to put abortion clinics on federal property, his team seeing the more liberal proposals as unfeasible and in some cases harmful.
Biden advisers believe that he sounded the alarm in an effective way — chastising the decision but not casting the judges as illegitimate and making the case that the remedy was through legislative action and elections. They think the rightness of their approach was proven in the policy sphere and at the ballot box: Democrats wildly outperformed expectations in the midterm elections in large part due to voter anger over Dobbs.
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