Biden Comes Up Short on the Court

The Supreme Court concluded its October 2022 term with three reactionary rulings. In rapid succession, it ended affirmative action in college admissions; overturned President Biden’s student debt forgiveness program; and held that an evangelical Christian graphic designer has a First Amendment right to refuse to create websites for same-sex weddings.

Biden reacted quickly, issuing separate statements on each of the decisions. He condemned them as wrongly decided, painful and disappointing, and promised to develop strategies to counter their impacts. But he stopped short of backing the only reform that can reverse the Supreme Court’s extreme rightward turn: expanding the court and filling the new seats with liberal jurists if he is reelected and the Democrats galvanize their base to retake both houses of Congress in 2024. 

To his credit, Biden was forceful in rebuking the court’s 6-3 majority opinion on affirmative action written by Chief Justice John Roberts.

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“For 45 years,” he said in a televised address delivered on June 29 from the Roosevelt Room at the White House, “the United States Supreme Court has recognized a college’s freedom to decide…how to build diverse student bodies to meet their responsibility of opening doors of opportunity for every single American. In case after case…the court has affirmed…that colleges could use race not as a determinative factor for admission, but as one of the factors among many in deciding who [sic] to admit from a… qualified pool of applicants.”

He added, “Today, the court once again walked away from decades of precedent” …and issued a decision that as the dissent [written by Justice Sonia Sotomayor] states, ‘rolls back decades of precedent and momentous progress.’”

Biden also rebutted the insidious myth that affirmative action leads to the admission of unqualified students, and pledged his support for new measures to bolster diversity in higher education.

As he was leaving the room, a reporter shouted out, “President Biden, the Congressional Black Caucus said the Supreme Court has ‘thrown into question its own legitimacy.’ Is this a rogue court?”

Biden paused for a moment, smiled slightly and turned toward the reporter. “This is not a normal court,” he answered. Without further comment, he exited through a side door. 

Later that afternoon, in an interview with MSNBC’s Nicolle Wallace, Biden was asked what he meant by his answer. He replied that the court has “done more to unravel basic rights and basic decisions than any court in recent history, and that’s what I meant by not normal.” He cited last year’s reversal of Roe v. Wade, and observed that the court has “ruled on a number of issues that … had been precedent for 50, 60 years sometimes.”

But he also flatly shot down growing calls by progressives for court expansion, saying, “I think 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.”

Biden is a steadfast opponent of court expansion. Throughout the 2020 campaign, when repeatedly pressed on the issue, he promised to convene a blue-ribbon commission to study the need for court reform. He made good on that promise in April 2021 when he issued an executive order that created a bipartisan member panel of former federal judges, high-powered attorneys and law professors to examine the pros and cons, not only of expansion, but also such measures as term limits for Supreme Court justices and ethics reforms aimed at establishing a binding code of judicial conduct for the court, which remains the only federal judicial body that operates without a code.

In the end, however, the commission issued a 288-page final report the following December that can charitably be described as a dud. Apart from tepid and vague language endorsing increased transparency in the court’s internal procedures and the adoption of an “advisory” [but not mandatory] code of conduct, the commission failed to advance any concrete proposals. In the words of The Nation columnist Elie Mystal, the entire endeavor “was designed to fail” from the start, and was “set up to give the president and Senate Democrats cover for total inaction.”

Given the Supreme Court’s recent track record and its virtually unchecked power, such inaction can no longer be justified. With its six-member Republican supermajority, including three justices appointed by Donald Trump, the court is driving the country and American law backward.

The court’s extremism is inflaming voter anger and will likely be a key driver of turnout in the 2024 election. Biden should be shrewd enough to harness that anger. It is not sufficient for him to acknowledge that the Supreme Court isn’t “normal.” It’s time for him to recognize that the court is broken, and the only way to fix it is to expand it.