The Supreme Court Is Broken. Where’s
Biden?
By Jeff Shesol
Mr. Shesol, a historian, has written several
books about American politics, including “Supreme Power,” the story of Franklin
Roosevelt’s failed attempt to pack the Supreme Court in 1937.
- Sept. 30, 2022
In a recent speech at
Independence Hall, President Biden called on Americans to stand against an
assault on democracy — the ongoing assault waged by insurrectionists and
would-be patriots, by election deniers and other extremists. “We are not
powerless in the face of these threats,” he insisted. “We are not bystanders.”
Yet that role —
bystander — is exactly the one Mr. Biden seems to have assigned himself when it
comes to the Supreme Court, which is posing a more profound challenge to the
American system of self-government than any violent mob has managed. The
court’s conservative justices have issued a run of rulings that make it harder
for many Americans, particularly citizens of color, to vote; make it easier for
partisans to grab power by distorting the shape of legislative districts; and
make it nearly impossible to counter the corrupting influence of money in
politics. This is only a partial list — and is, most likely, only the
beginning. In the term that starts on Oct. 3, the conservative bloc, six
justices strong and feeling its oats, will decide whether an Alabama congressional map discriminates
against Black voters and will consider a novel theory that
state legislatures should have a free hand, unconstrained by state courts, in
setting rules for federal elections.
After the court, in
Dobbs v. Jackson Women’s Health Organization, eliminated the constitutional
right to abortion, Mr. Biden stood in the White House and decried the decision
as “the culmination of a deliberate effort over decades to upset the balance of
our law.” He hit the same refrain the next week, warning that an “extremist court” was
“committed to moving America backwards.” Yet he has had little, if anything, to
say about other consequential cases. In response to the court’s ruling in New
York State Rifle & Pistol Association v. Bruen, a death knell for
many efforts to keep guns out of public places, Mr. Biden issued a statement that
he was “deeply disappointed” — less a protest than a sigh. Likewise for West
Virginia v. E.P.A., in which the conservative justices blocked the
Environmental Protection Agency from regulating the emission of greenhouse
gases. “Another devastating decision,” the president observed in a press release.
(Since then, he has found other means to keep up the fight against climate
change — executive actions and, notably, the provisions of the Inflation
Reduction Act.)
It
is a strange non-reaction, given the stakes. While Mr. Biden promises to “build
back better,” the court’s majority is a demolition crew, razing or gutting
legislative landmarks — the Voting Rights Act,
the Clean Air Act — by means of sweeping opinions. The problem is not simply
that Mr. Biden says too little about these retrograde rulings, it is that he
treats them as discrete events rather than the defining project of the court’s
conservatives: to lay waste to the welfare state and the administrative state,
the civil rights revolution, the underpinnings of an accountable, workable
government. He has said little to suggest that the court’s majority is
dangerously, defiantly out of step with what Chief Justice Charles Evans
Hughes, in the 1930s, called “the plainest facts of our national life.” And he
is silent on the subject of what, if anything, is to be done when justices slip
the bonds of self-restraint to chase their ideological dreams.
In Philadelphia and
on the hustings, Mr. Biden has begun to acknowledge the tribal warfare that
consumes this country. Yet the Roberts court is both a product and a sponsor of
that conflict, and the president should say so. He needs to “take the country
to school,” as Felix Frankfurter, who would later become a Supreme Court
justice himself, urged Franklin D. Roosevelt in 1937, when another
ideologically driven court had put democracy on the docket.
During the 2020
presidential campaign, Mr. Biden’s ambitious agenda invited comparisons to that of F.D.R., and he leaned into the
analogy, citing Roosevelt as proof that “we can restore our soul and save our
country.” That analogy has worn rather poorly, but Mr. Biden would do well to emulate
the clarity and energy that Roosevelt brought to the issues of the court and
the Constitution.
Roosevelt, like Mr.
Biden, briefly practiced law before seeking public office. He was only ever an
indifferent lawyer and not remotely a legal scholar, but he loved to talk about
the Constitution. He firmly believed, as he dictated for a magazine article,
that “the Constitution was never meant to be a ‘dead hand’ … the founding
fathers conceived it as a living force for the expression of the national will
with respect to national needs.” This wasn’t a platitude. It was an indictment
— aimed directly at the court’s blinkered, backward-looking conservatives.
F.D.R.’s Constitution was “a layman’s document, not a lawyer’s contract,” and
he felt certain that the public, with his help, could comprehend what the
justices were doing and why it was wrong. To that end, he did not deal in
abstractions. When the court issued obscurant opinions, cloaked in legal
incantations that read like magic spells, Roosevelt translated them into plain,
urgent English, spelling out their effects.
And the public
responded. On May 27, 1935, the court struck down the National Industrial
Recovery Act, the centerpiece of the early New Deal, resting its opinion in
part on a preindustrial, 19th-century notion of interstate commerce. Four days
later, Roosevelt called reporters into the Oval Office and talked — without
notes — for 90 minutes, dissecting the decision and the “perfectly ridiculous
and impossible situation” it created. The Great Depression notwithstanding, the
court, as Roosevelt put it, had ruled that “the United States government has no
control over any national economic problem” and had thrown the nation back to
“the horse-and-buggy age.”
Roosevelt’s
remarks drew howls from the conservative press, but it quickly became clear
that the president had reshaped the public discussion. A flood of telegrams hit
Capitol Hill, many calling for a new commerce clause. Overnight, The New York Times reported, once reluctant senators
concluded that amending the Constitution for this purpose “was not such a bad
idea.” Ultimately, Roosevelt would reach for a blunter instrument. His attempt
to pack the court, to increase the number of justices from nine to as many as
15, was the costliest political mistake of his presidency. It wrenched wide the
splits in the Democratic Party, re-energized the G.O.P. and stalled his
second-term agenda right out of the gate. All the same, by the late 1930s, Roosevelt
had helped build a consensus that constitutional interpretation should keep
pace with the realities of modern life. That shift in public sentiment would
endure for decades.
Absent a vacancy to
fill, presidents have little ability to change the direction of the court. That
is as it should be. But as Roosevelt showed, they can change the conversation —
and with it, over time, public opinion. In a similar spirit, Mr. Biden should
view adverse rulings as opportunities to deliver his own dissents — to expose
the designs of majority opinions, demystify them, debunk them, show whose
interests they serve and whose they do not, and provide a countervailing view
of the Constitution.
Take New York State Rifle v.
Bruen, the 6-3 decision striking down a century-old requirement of “proper
cause” to carry a handgun in public. Instead of expressing disappointment and
moving on, Mr. Biden should have identified the central — and novel —
contention of Justice Clarence Thomas’s opinion: that “history and tradition,”
rather than public safety, is the principal basis for gun regulations. And
speaking of history, Mr. Biden should have challenged the opinion’s willful
misreading of it, not least its disregard for the tradition, dating back to the
nation’s founding, of regulating the concealed carriage of firearms. Above all,
he should have called out the fallacy that the Second Amendment envisions an
individual rather than a collective right to bear arms. He should have said all
this even though Justice Stephen Breyer covered much of it in his dissent. Mr.
Biden has the bully pulpit. With it comes a greater opportunity and, for that
reason, a greater obligation to be heard.
So why is the
president sitting this out?
It cannot be
indifference. Few can doubt Mr. Biden’s empathy for the families who will lose
loved ones to gun violence, the women who will be denied lifesaving abortions,
the voters who will be purged from the rolls because of this court. Nor can he
imagine that Congress will expediently undo what the court has wrought. From
time to time, Congress does find the will: In 2009, for example, the Lilly
Ledbetter Fair Pay Act extended the statute of limitations for wage discrimination
lawsuits, reversing a narrow-minded 5-4 decision. More than 12 years have
passed since Citizens United v. Federal Election Commission opened the
floodgates to undisclosed political spending. That decision is still the law of
the land. So, nine years on, is Shelby County v. Holder, which hobbled the
Voting Rights Act of 1965. A voting rights bill named for the late John Lewis,
which passed the House last year but sputtered in the Senate,
was one of many failed attempts to reverse the effects of Shelby County. Mr.
Biden is all too aware that Congress is rarely roused to act. When the court
issued its decision in Dobbs, he urged Congress to “restore the protections of
Roe v. Wade as federal law” — and hastened to note how unlikely that was.
(A pre-emptive effort had
already failed.)
What, then, explains
his reserve? Perhaps he is simply afraid of the blowback — whether from
Republicans, who would eagerly paint any criticism of the court as “radical
leftism,” or from moderate Democrats, who share his disdain for decisions like
Dobbs but would likely back away from confronting or reforming the court.
Senators Joe Manchin and Kyrsten Sinema are already on the record as opponents of
court packing, and at a time when Mr. Biden has to beg and barter for their
votes, he is surely disinclined to provoke them.
And provocation has
never been his style. Mr. Biden has long been taken by the notion of the Senate
as a “saucer” in which political passions cool, and appears to see himself in
the same light. While he is moved at times with righteous indignation, he seems
most comfortable as America’s balm, its salve, its anti-inflammatory. It would
most likely not offend him to be told he is having a dampening effect on the
debate about the court.
Indeed,
he has been hostile to the idea of court expansion since at least the 1980s,
when he served as chairman of the Senate Committee on the Judiciary. In 1987,
in a speech to the American Bar
Association, Mr. Biden spoke admiringly of the senators who had
stood in the way of Roosevelt’s court-packing proposal: “In their minds,” he
said, “the integrity of the court meant more than the agenda of the president.”
In 2020, as a
candidate for president himself, Mr. Biden was forceful in his rejection of
court packing. If Democrats expanded the number of justices, he said, they
would “live to rue [the] day.” He painted a picture — just as Roosevelt’s
critics did — of an endless cycle of retribution, with each round of court
packing sparking another by the opposing party until “we begin to lose any
credibility the court has at all.” It is a reasonable concern. Yet Mr. Biden
has made clear his animus extends to other reforms, including term limits for
justices. “It’s a lifetime appointment,” he said in 2020. “I’m not going to
attempt to change that at all.”
He has been true to
his word. Upon taking office, he created a commission to review proposals for
court reform and then removed its teeth, asking the group to write a report
containing no recommendations. When “staggered term limits” — the idea of
setting an 18-year term for justices and mandating that two (and only two)
appointments would be made during each four-year presidency — emerged as
something close to a consensus solution, Mr. Biden shrugged it off without
comment, leaving a bitter taste for many who had dedicated their time and
insights to the effort.
Mr. Biden, the
explanation goes, is an institutionalist. During his many years on the
Judiciary Committee, he spoke of the Supreme Court with respect, even
reverence. It has proved a hard habit to break, even as the court’s entrenched,
amped-up supermajority wages its campaign against the 21st century (and much of
the 20th). “His admiration for the court as an institution has been overtaken
by reality,” Harvard Law School’s Laurence Tribe, who also served on the
commission, told Politico last
summer. “And I think it’s time to wake up.” Sometimes an institution must be
saved from itself.
Popular discontent
with the court is growing, for good
reason, and will seek outlets for its expression. Mr. Biden might worry that by
discussing the court, he will politicize the court. But as Justice Elena Kagan has pointed out,
the court itself has already done that. And absent the president’s engagement,
the loudest, angriest voices will fill the void. He has a window, for now, in
which he might set the terms for a productive, not destructive, discussion
about remedies — a discussion that will outlast his own time in office. Court
reform is a long game. Ending life tenure for justices, for example, would
likely require a constitutional amendment — a daunting prospect, but far from
impossible if Mr. Biden gets to work in laying the groundwork. “The
presidency,” Barack Obama has written, “is a
relay race.”
Consider how we
arrived at this moment. The radicalization of the Supreme Court seems to have
hit like a sudden storm: In just four years, Donald Trump installed three new
justices. But the right’s takeover of American law was set in motion in the
late 1960s by Richard Nixon, who attacked the “creeping permissiveness” of
liberal judges and expounded “strict constructionism.” Later Ronald Reagan, an
even truer believer, carried the crusade into the 1980s — transforming the
judiciary through his appointments and changing public attitudes by insisting
that the framers’ “original intent” ran unerringly in the direction of smaller
government. The path from Nixon to Reagan to Dobbs was half a century long.
“No
matter how long the road,” Mr. Biden promised in Philadelphia, “progress does
come.” Yet it will not come unless every American of conscience — including the
one in the White House — steps off the sidelines. Until then, the assault on
democracy he described will continue. It will be waged in state legislatures
and in Congress, and on the first Monday of October it will recommence in the
conference room of the Supreme Court.
