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Members of Biden's commission alarmed that Biden isn't alarmed over Supreme Court [1]
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Date: 2022-07-07
This session’s horrific rulings on guns, abortion, climate change, voting rights—everything that matters—has one of those commission members livid. Former U.S. District Judge Nancy Gertner has become a court expansion advocate and is scathing in assessing the court. “It was a place of solidity and rational discourse. It really is not anymore,” Gertner told Politico. “It really is a set of decisions that they did only because they can. And that is an exercise of pure power, not legal reasoning.”
Gertner didn’t start out in the expansion camp, initially arguing for more modest structural reforms. Her experience in working with the commission and hearing testimony from outside experts convinced her more needed to be done, even though the commission released a relatively noncommittal report. The court itself solidified that for her. “This is absurd. Of course, there’s something we should do,” she said. “When you read the draft … and then you watched as the court did whatever it wanted to do. I changed.” Gertner said that she is “deeply frustrated” that Biden seems to fundamentally not get the danger the court poses to democracy.
She’s not the only one. “His admiration for the court as an institution has been overtaken by reality. And I think it’s time to wake up,” Harvard Law professor Laurence Tribe told Politico. Tribe was also on the commission and has advised the Biden White House previously. “It’s the court itself that has plunged ahead without any inhibition on a kind of highly activist, agenda driven, right-wing ideological jihad.”
The White House responded, and not well. In fact, they rather missed the point. “The president has blasted the court’s decision in Dobbs attacking Americans’ most personal rights as ‘extremist,’ ‘outrageous,’ and ‘awful’ and taken swift action while warning against the national abortion ban congressional Republicans are seeking,” White House Deputy Press Secretary Andrew Bates said. Then he pivoted to inflation. “He’s being straight with the American people, giving voice to their biggest concerns, and leading the way on protecting their rights and middle class families’ finances,” Bates added.
That precisely demonstrates what many see as the core problem: Biden and his White House aren’t seeing the Supreme Court for what it is—a threat—and are looking at it through an outdated, outmoded lens of politics as usual. Or politics as usual in the 1980s and 1990s.
“If you’re in a kind of theoretical game situation with an opponent who begins acting in bad faith, what do you do? Do you continue to play by the rules and hope that will incentivize them to return to the norms? Or do you retaliate in a tit for tat way and thus hopefully incentivize [them] to go back to the traditional norms?” asked Michael Klarman, a Harvard law professor. He was among the experts who testified to the commission. “I think you’re a fool for not doing what’s in your power to try to protect the system,” Klarman added, calling Biden “hopelessly naïve” for opposing court expansion.
“Why does Joe Biden consider it his job to keep the public having confidence in a court that is completely working to thwart his agenda?” said Brian Fallon, the executive director of court reform group Demand Justice. “He’s not ready to endorse it. [But] why demotivate his people that are passionate and upset at that moment? Why not leave a little fear in the minds of the Republican justices on the court about what he might support once he gets into office? Why not put a little fear into Mitch McConnell about what he might be for?”
Biden’s embrace of the status quo has defenders. Democratic strategist Ben LaBolt, who helped shepherd Justice Ketanji Brown Jackson’s nomination and confirmation, is among them. “If you put all the rhetorical and political pressure behind something that you know is not going to pass this Congress, such as court expansion then you’ve passed on the opportunity to do all of the things that that can and must be done now,” he told Politico, ignoring the fact that Senate Minority Leader Mitch McConnell is not giving him that opportunity anyway.
There is an already big and growing disconnect on the Supreme Court between Biden and the people he needs to help him get elected. The very day the court overturned abortion rights, Biden’s spokesperson Karine Jean-Pierre explained away Biden’s initial reaction, in which he said: “This is an extreme and dangerous path the court is now taking us on.” That wasn’t what he meant, Jean-Pierre insisted, saying what he meant was that the decision was extreme, but he’s hunky dory with the court. “He sees the court obviously as legitimate and he respects the court … it is a court that he highly respects,” Jean-Pierre insisted.
Biden’s voters disagree. For example, this week’s Navigator poll, reported by Kerry Eleveld, tracked the net change in favorability of the court:
Liberal Democrats: -57
2020 Biden voters: -52
College women: -44
White collar: -40
Suburban: -39
Service industry: -34
Women: -32
Independent women: -30
Ages 18-34: -30
“The groups that have moved most against the court are younger, female, suburban, liberal Democrats, and independent women.” Precisely the people who need to be motivated to turn out in droves this November if Biden has any hope of seeing his presidency succeed.
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