Postscript: I think I’ve changed my mind. What I think Biden should be doing about the Court — and what he may in fact be doing — is dealing with its in the way that’s best designed to get him re-elected next year. Maybe being his usual not-radical self about the Court is what’s best for getting the swing vote on his side, while they reject the criminal, Trump.
Rejecting this Fascist Court becomes more worth focusing on once Biden is safely ensconced for another four years — and when the Democrats might also be in a stronger position in Congress to carry through on ideas to take measures to reduce the power of this six-Justice Republican-appointed Court majority.
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President Biden was on MSNBC this afternoon, interviewed by Nicole Wallace. Today being the day that the Supreme Court handed down another decision — on affirmative action — that overturns major long-standing precedent, the conversation went into the problem the nation now faces with this Supreme Court.
Biden was strong in his criticisms, though mild of tone. He stressed, for example, how many of the Supreme’s recent decisions are moving things contrary to the values of the majority of Americans. And he pointed out how this Court majority is so partisan, with decisions being made by majorities breaking down — far more than in the past — according to the political party that put the Justices on the Court.
He seems very aware of the damage this Court is doing.
But then he went too squishy for my taste. When the subject of expanding the Court came up, he was quick to reject that idea. He expressed the concern — not unreasonable — that doing such a thing would politicize the Court, perhaps in ways that would prove permanent.
One problem with that is that this Court has already been politicized. The Republicans have only won the popular vote once in the last seven presidential elections. (And that once was very close, decided only by one state— Ohio.) Yet the Republicans have named six of the nine justices. (And one of those seats was stolen by the Republicans in the Senate (in 2016).)
But putting that aside, if there are good reasons for expanding the Court, why should one give up on persuading the Court that it is righting a wrong to take strong measures to correct a problem that’s apparently widely recognized by the public (since the polls show that the Court has fallen into unprecedented disrepute in the minds of the American people)?
Do what’s necessary to take back control of a Court. It should be possible to get public support for taking strong actions to address the problems of a Court whose legitimacy is widely question now by the American people. (Questioned for good reasons not just some major indefensible decisions, but also its apparent problem of corruption, and its refusal to address it.)
Biden does have an optimistic sense of there being some possibility to reign in the recklessness and partisanship of this Court: it is that very public questioning of the Court’s legitimacy that President Biden thinks will provide the leverage to keep this Court more moderate. He thinks that enough of these Republican-appointed judges care about the public’s thinking them legitimate that they will behave themselves better to regain the support they see they’ve lost.
That seems a real possibility. Two recent decisions by this Court in defense of Democracy actually ran contrary to the partisan interest of the Republican Party:
- 1) the decision with the Alabama gerrymandering will likely cost the Republicans one seat in the House in itself, and likely a few additional seat in other states where the Republicans have tried to minimize the representation of African-Americans in Congress; and then
- 2) the decision to reject the “Legislative Independence Theory,” an absurd effort to contort the Constitution to enable Republican-dominate legislatures to usurp the powers of the people in the election process.
One plausible interpretation that’s been offered is that two or three of the six Republicans-in-Robes are, as Biden suggests, wanting to shore up their image as a legitimate body that applies the law, rather than just acting as an extension of the Republican quest for dominance.
But even if there’s some of that, I think it unwise to bank on that moral appeal to these Republicans. They have shown such a willingness to act simply in terms of power, without regard to the usual Rule of Law, that I wouldn’t want to rely on their giving up much of the partisan purposes for which the Federalist Society, the corporate world, and the Republican Party put them on the Court.
(That the President was wanting to evade the nature of the challenge was suggested by the long tangent Biden went on when the subject of court-expansion came up: he talked at length about all the good and diverse judges he was appointing to the lower Courts. Important, yes, but as Ms. Wallace was too polite to point out, the big decisions come up to the Supreme Court, and whatever the lower judges think, the Supremes by themselves can throw out Roe v. Wade and overturn affirmative action.)
Legitimacy is not a strong enough motivation for the occasion. At the very least, it would be good for the President to add to that supposed desire to be thought legitimate the more power-oriented stick of raising the possibility of taking bolder action, like diluting their power by expanding the Court.
I am not ready to say that expanding the Court is the best way to deal with the issue. Maybe it is, or maybe there’s something better. But that’s a discussion that the President should encourage.
I am ready to say that I would like for the President to hold open the door of bold action, leaving it to others to lead the charge but not foreclosing the idea that he might be brought to support such a thing.
If the Court does the right thing out of fear, then the threat will have been worthwhile. If the Court refuses to do the right thing, and remains a part of the Fascistic Coalition, then follow through on the threat.
It is simply not acceptable for the Court to exercise the last word on what the Law means when the Court itself is not ruled by the Law.