WASHINGTON (AP) — After heavy blows to his platform from the Supreme Court, President Joe Biden is determined 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 ripped away the hope they were given.” When 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 abortion right last year, the president said, “Voters need to make their voices heard.”
As Biden heads into the 2024 election, he’s 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 as Biden stops short of calling for an overhaul.
This shift is becoming apparent in everything from messages from the White House to its legal strategy.
“The president respects the authority of the tribunal, but if his judgments are to be political and members of the tribunal say so, he owes it to voters to clarify what his positions are and what he is doing to address them,” said Ron Klain, his former chief of staff.
“Many members of the current court have testified that Roe is settled law and have always overturned it,” he added, referring to the court’s decision on abortion. “That has its consequences.”
Biden, who once headed the Senate Judiciary Committee, is focused on politicizing the court as a way to encourage voters to support him. Yet he made no effort to bring big changes to the court.
Instead, Biden is increasingly expressing his belief that the court is abandoning traditional 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 won his share of cases, including on immigration, in court where the conservatives hold a 6-3 majority. But the student loan defeat capped a term as judges imposed major roadblocks .
White House officials said Biden wanted to explore other ways to pursue the same priorities and explain the obstacles to the American people.
“There are only advantages to running against the court as an institution because the court is doing extremely unpopular things and preventing the president from implementing his agenda,” said Chris Kang, chief counsel for the progressive group Demand Justice and former deputy adviser to President Barack Obama.
“I think it’s important to clarify that the Supreme Court is making it impossible to implement and advance policies that shouldn’t be controversial,” he added.
Republicans are working to portray Biden as overstepping his legal authority in pursuing his agenda. They say the high court’s policies are in tune with much of the country, and they’re trying to motivate their own constituents by pointing out what the GOP has achieved through court rulings.
Former President Donald Trump, at the recent Faith and Freedom Coalition conference in Washington, praised the three justices he appointed to the Supreme Court. “Exactly one year ago today, these justices were the deciding votes in the landmark Supreme Court decision ending the constitutional atrocity known as Roe v. Wade,” Trump said.
He drew a standing ovation by noting that “the Conservatives had been trying for 50 years” to overturn that decision. “But I did it and no one ever thought it was a possibility.”
Other administration officials said the court’s conservative dominance reduced the political cost to Biden when judges scuttled some of his legally suspicious actions such as student loans and coronavirus warrants. On that last point, the Supreme Court overruled Biden’s attempt to require big business employees to get vaccinated, but left the requirement in place for healthcare workers, although at that time , the pandemic has begun to wane.
Klain insisted that everything Biden offered had a solid legal basis and had been approved by the Justice Department’s Office of Legal Counsel.
“There was no sense in taking legal matters lightly or just ‘doing it and taking whatever the court says,'” he said.
Trust in the Supreme Court has fallen to its lowest level in at least 50 years after the draft opinion in the 2022 abortion case was leaked. Those who view the current court favorably are largely Republicans.
According to the September 2022 report from the Pew Research Center, only 28% of Democrats and Democratic-leaning independents now view the court favorably, down nearly 40 percentage points since 2020. And in the United States, people are increasingly in favor of term limits.
Positive opinions of the court among Republicans and those leaning Republican increased to 73%. As a result, the partisan gap is wider than at any other time in the 35 years of polls Pew has conducted on the field.
Republicans have focused for years on overhauling the federal court system and the Supreme Court. When Sen. Mitch McConnell, RK.Y., was Majority Leader, he even refused to meet Obama’s 2016 choice for the High Court — current Attorney General Merrick Garland, a federal judge at the time. . The nomination has been stalled until a Republican president, Trump, takes over.
Establishment GOP operatives backed Trump because of his promise to appoint as many judges as possible. Their bet paid off. Trump ended up with three Supreme Court nominees and 54 Federal Court of Appeals justices, reshaping the courts for a generation.
Democrats finally understand the power of judges as a voting tool, and Biden has made judicial nominations a priority, nominating a record number of justices for a president at this point in his first term, including some of the toughest picks. various to date. judicial. Biden’s aides plan to highlight those achievements in the re-election campaign, but acknowledge that it is only a small balm to their problems in the High Court.
Biden has begun warning voters about what else the Supreme Court might do in the future, whether it’s rolling back same-sex marriage rights or access to contraception.
“President Biden is direct with the American people on the stakes of these extreme decisions that drop decades of long-standing precedent for their fundamental freedoms and their daily lives,” said White House spokesman Andrew Bates. .
Part of Biden’s reluctance to go further to reshape the Supreme Court stems from a sense of history. Those pushing for social change stood with the court after Brown v. Board of Education, a major civil rights case, and even Roe v. Wade, supporting his autonomy as a way forward. Getting away from that, especially for an established Democrat like Biden, isn’t easy.
As Biden said in an interview with MSNBC, “I think if we start the process of trying to expand the court, maybe we’re going to politicize it 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 on the Supreme Court, said while Biden is unlikely to go that far, “there are a variety of things that Democratic politicians could execute that would actually allow them to more explicitly push back against the court.”
Besides expanding the size of the Supreme Court and/or lower courts, she said, other options include removing the Supreme Court’s jurisdiction in certain cases, setting term limits and the implementation of ethical changes.
All, she said, are things the party could adopt “as part of its recognition that the court has become politicized.”
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