The messages have been delivered publicly and privately by President Biden’s allies: He is not going after the Supreme Court hard enough.
In the two years since Biden took office, the court’s conservative majority has undermined or struck down abortion rights, affirmative action, gay rights, gun control and environmental regulation. He has blocked the president’s agenda on immigration, student loans, vaccine mandates, and climate change.
The recent rulings are blockbuster conservative victories that could help Democrats stir up anger among women, young voters, environmental activists, Black people and members of the LGBTQ community as the president looks ahead to the 2024 election.
But despite mounting pressure, Biden has withstood a full-blown attack on the Supreme Court itself or on individual justices. He has denounced individual court decisions, but has said he does not want to politicize the third branch of American democracy and risk undermining its authority forever.
The president’s approach falls short of what progressive activists and leading members of his own party have been urging: moving beyond simply disagreeing with the court’s decisions and attacking the court as an institution. He names his six conservative justices as corrupt MAGA Republicans who are in the pocket of special interests. Question the very legitimacy of the conservative court.
“He’s an institutionalist at heart,” said Brian Fallon, a Democratic activist who has been waging a years-long campaign to reform the Supreme Court. “I think that the politicians of his day continue to have reverence for the court as an institution even though this current court, in its current composition, does not deserve that reverence. But old habits are hard to die.”
A former senator who spent years presiding over Supreme Court nominations as chairman of the Judiciary Committee, Mr. Biden believes in the court’s potential as a force for good, according to people close to him. In his 2007 memoir, he speaks reverently of the court, quoting James Madison as he recounts the contentious fights he led for Republican candidates in the 1980s and 1990s. He called recent Supreme Court decisions “extreme” and ” scandalous”, but in a interview on MSNBCthe president would not call the court “undemocratic.”
“Her value system is different,” Biden said, focusing on the court’s rejection of abortion rights. “And his respect for the institutions is different.”
Examinations of the past two years of Supreme Court decisions have revealed what longtime observers say is a clear shift to the right, making it, by a measure, the most conservative court in history. almost a decade. But despite several significant victories for the right in the past month, the court’s latest term also featured some liberal successes on the Voting Rights Act, immigration, the role of state legislatures in elections and Native American rights. .
Still, Biden’s allies advocate a forceful complaint from a court they view as wildly out of step with the country.
Some have suggested that the president target reports of intimidation between conservative judges and wealthy donors to call the court corrupt. Others have pushed for him to adopt term limits for judges. Adam Green, chairman of the Progressive Change Campaign Committee, urged the White House and lawmakers for the president to accuse the court of having a “legitimacy crisis.”
“We would like to amplify anyone using this corruption/legitimacy message,” Green wrote to lawmakers a few weeks ago. “Do you think your office can include this line in public statements as decisions are made?”
Mr. Green has shared private polling data with Democratic politicians that suggests there is support among the public for attacking the court as an institution. In their polls, 62 percent said the court “increasingly faces a crisis of legitimacy.” Only 26 percent disagreed with that statement. The split was similar among independent voters.
“Criticizing the institution, if done at a high crescendo, will hopefully make the court on its best behavior going forward,” Green said.
The idea is taking hold among some of the president’s main allies.
“The MAGA fanatical right has taken over the Supreme Court and pursued dangerous and regressive policies,” says Sen. Chuck Schumer of New York, the house’s top Democrat. Sen. Sheldon Whitehouse, a Rhode Island Democrat and member of the Judiciary Committee, is relentless in calling the judicial body “a captured court” that “is running amok without recourse.”
Rep. Nancy Pelosi, a California Democrat and former Speaker of the House of Representatives, calls Justices Clarence Thomas and Samuel Alito by name, called their actions “disgraceful” and said the “Republican-controlled court” has achieved a “dark and extreme vision” for the country. . She has endorsed the idea of term limits for Supreme Court justices.
There is a historical precedent for a president waging a campaign against the Supreme Court and its rulings.
Richard Nixon campaigned in 1968 against the liberal criminal justice decisions of the court under Chief Justice Earl Warren. Theodore Roosevelt repeatedly denounced the court’s business rulings during his 1912 campaign. Franklin Roosevelt fought a losing battle to expand the size of the court after justices began dismantling parts of his economic agenda.
“When Supreme Courts are perceived as extremist or ideological, it can lead to political realignment and can become a defining issue in campaigns,” said Michael Waldman, president and CEO of the Brennan Center for Justice at the University School of New York. York. Of law. “That hasn’t happened yet. But all the ingredients are there.”
During Biden’s 2020 campaign, many progressives urged him to consider sweeping Supreme Court reforms to counter the influence of its conservative members, including expanding the number of justices.
Not wanting to dismiss the concerns of progressives, Biden agreed to set up a commission to study the idea if elected. The group he created once in office produced a report that exposed deep divisions over the idea of increasing the number of judges to shift the balance of power, a move known as “packing the court.” But the group did not take a position on that idea or other potential actions, such as term limits.
Since the panel delivered its report in late 2021, the president has made little public comment on it.
Waldman, who was a member of the president’s study commission, said progressives have largely given up on the idea of convincing Biden to support court expansion, because it’s clear he’s opposed to that idea. But Waldman said the president could still be more aggressive in the language he uses.
“There is a long history of these issues being part of the presidential dialogue and debate, and I think it would be a missed opportunity if President Biden didn’t take advantage of it,” he said.
But Biden, it seems, is not willing to go there, to the frustration of some members of his own party.
“His heart is not in it,” said Jeff Shesol, speechwriter for former President Bill Clinton and author of “Supreme Power: Franklin Roosevelt vs. the Supreme Court”.
“He is clearly outraged by the decisions this court is making,” Shesol said. “He’s never been that guy. As angry as he surely is by these decisions, he’s willing to put up with it.”
White House officials say Biden has shown a willingness to criticize court rulings on abortion, affirmative action and other breaks with long-standing legal precedents. And they said she is aggressively nominating a diverse set of judges for the federal court, including the first black woman on the Supreme Court.
Officials promised that that will continue as Mr. Biden seeks a second term.
“President Biden is assembling a diverse coalition to protect the fundamental rights of the American people,” said Andrew Bates, White House spokesman. “He is making a strong case, with which most of the country and Congressional Democrats agree, against what he calls ‘extreme’ and ‘outrageous’ behavior from a court that is increasingly diminishing institutions by legislate from the bench.
There have been a few recent moments when the president seemed to flirt with a more aggressive stance toward the court.
After the six conservative justices voted to eliminate the use of affirmative action by colleges and universities last month, a reporter wanted to know if Biden thought the Supreme Court had gone rogue.
“This,” the president said after thinking for a moment, “is not a normal court.”
It seemed like it might be the start of exactly what some of the president’s supporters had been asking for. In talks with White House officials, Green was told the president would not question the legitimacy of the court, but he remained hopeful that even saying the court is not “normal” was a step in the right direction.
“That will be in the history books,” Green said of the president’s comment.
But a few hours later, Mr. Biden made it abundantly clear what he meant and what he didn’t mean. He didn’t want to politicize the court too much, he told Nicolle Wallace during the interview with MSNBC. He only focused on the judges’ decisions with which he disagreed, such as their far-reaching rejection of abortion rights.
“What I meant by that is that it has done more to unravel basic rights and basic decisions than any court in recent history,” Biden said. “And that’s what I meant by ‘not normal’.”