Bombshell decisions have intensified liberal calls for Biden to urge a revamp of the court as he heads toward 2024. So far, he’s resisting.
Over the last week, the Supreme Court rejected the use of affirmative action in college admissions, struck down Biden’s plan to forgive student loan debt and sided with a graphic artist who does not want to create wedding websites for gay couples. Those blows to the liberal agenda come almost exactly a year after the court overturned a half-century of precedent by rejecting the constitutional right to abortion.
After the court last Friday blocked Biden’s plan to forgive student loan debt, Reps. Don Beyer (D-Va.) and Ro Khanna (D-Calif.) reintroduced legislation to institute 18-year term limits for Supreme Court justices. The long-shot legislation would only apply to future justices and would allow them to continue serving on lower courts after their term was up. Supreme Court justices, like other federal judges, are currently appointed for life.
Beyer, Khanna and other Democrats argue that the mounting number of what they call radical rulings by the court, along with reports that some justices have accepted lavish trips from wealthy figures, have created a crisis of legitimacy.
“Recent partisan decisions by the Supreme Court that destroyed historic protections for reproductive rights, voting rights and more have undermined public trust in the court — even as inappropriate financial relationships between justices and conservative donors raised new questions about its integrity,” Beyer said in a statement.
The Congressional Progressive Caucus, a group of more than 100 lawmakers, recently renewed its push to expand the court. Several Democratic senators, including Sens. Tina Smith (Minn.) and Edward J. Markey (Mass.), have voiced support.
Planned Parenthood and NARAL, two of the nation’s largest abortion rights groups, have announced support for court expansion. And in recent days, influential Black leaders including Al Sharpton and Martin Luther King III have said they supported adding seats to the court after it rejected the use of affirmative action in college admissions.
“The court is already in a very unhealthy state,” said Brian Fallon, executive director of Demand Justice, a liberal advocacy group that backs court expansion. “The public’s confidence in the court has never been lower, and the court’s legitimacy derives from the public having a belief that its rulings are nonpolitical. The crisis is already here.”
Citing the recent burst of conservative opinions, Fallon said: “Progressives ought to get used to this happening every June unless we do something to systematically reform the Supreme Court.”
Conservatives, however, see the court’s trajectory very differently. Its recent rulings, they say, have only begun to restore constitutional order after what they say are decades when the federal judiciary was tilted the left.
“Most Americans agree that racial discrimination should play no part in the college admissions process,” Senate Minority Leader Mitch McConnell (R-Ky.) said after the affirmative action decision. “Now that the court has reaffirmed that commonsense position, students can get a fair shot at college and the American dream on their merits.”
Given that, Republicans argue that liberals’ push to overhaul the court is little more than a baseless reaction to legitimate rulings they happen to dislike.
Democrats first erupted in outrage about the court when McConnell, then the majority leader, refused to let the Senate consider President Barack Obama’s nominee to replace Justice Antonin Scalia after he died in early 2016. That allowed President Donald Trump to fill the seat with Justice Neil M. Gorsuch after it had been vacant more than a year.
The result has been a 6-3 conservative majority that Democrats say should have a very different composition. And their frustration has only grown as the court has overturned long-standing liberal principles.
In Congress, most of the support for court expansion rests with liberal lawmakers. But a growing number of more centrist Democrats have started to ratchet up their rhetoric as well, in some cases portraying the court as an extension of the GOP’s extremist faction.
“This MAGA-captured Supreme Court feels free to accept lavish gifts and vacations from their powerful, big-monied friends, all while they refuse to help everyday Americans,” Senate Majority Leader Charles E. Schumer (D-N.Y.) said after the conclusion of the court’s term.
In another illustration of the issue’s growing potency within the party, three leading Democratic candidates for a U.S. Senate seat from California — Reps. Adam B. Schiff, Barbara Lee and Katie Porter — have all embraced expanding the court.
Biden’s allies dismiss such calls as far-fetched, saying such a measure would never pass a narrowly divided Congress and arguing that the president has done far more good by restocking the federal judiciary with liberal-minded judges. “President Biden is speaking out forcefully against these extreme decisions that overturn decades of precedents, undermine constitutional freedoms and diminish our institutions,” said White House spokesman Andrew Bates. “A wide range of advocates and legal experts have endorsed the steps he is taking to protect those fundamental rights.”
Biden has had more judges confirmed to the courts than his past three predecessors did at an equivalent point in their presidencies, the president and his supporters often point out. They also say Biden will continue to rally voters around the court’s decision, pointing to the party’s success in the 2022 midterms as evidence of how Biden and Democrats galvanized voters in response to the overturning of Roe v. Wade.
“This is not a normal court,” Biden said last Thursday, later elaborating in an MSNBC interview that the court has “done more to unravel basic rights and basic decisions than any court in recent history.”
Despite his more forceful rhetoric about the court, Biden has shown little openness to major changes to its structure. He and others suggest that while expanding the court from nine to 13 or 15 justices could let him to populate it with more liberal jurists, there would be nothing to stop Republicans from expanding the court still further, and stocking it with ironclad conservatives, the moment they regained power.
“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 told MSNBC.
The building pressure on Biden to embrace reforms to the court is not new; he faced similar calls in the 2020 Democratic primary and then as his party’s nominee. Transportation Secretary Pete Buttigieg, then a rival to Biden for the nomination, suggested a plan under which Democrats and Republicans would each name five justices to the court, and those 10 would choose an additional five.
The idea of adding justices to the Supreme Court has been derisively called “court-packing” since President Franklin D. Roosevelt sought to expand the court in the late 1930s, ultimately suffering one of his most resounding political defeats on the issue. Some Democrats now argue that it is Republicans who have “packed” the court and that an expansion would “unpack” it.
Once Biden became the Democratic nominee in 2020 and began facing pressure from other Democrats to embrace the expansion push, he promised to create a commission to study proposals for reforming the court when he became president, which he did.
The commission submitted a 294-page report in December 2021, but Biden has said little about it. White House press secretary Karine Jean-Pierre said recently that Biden had read the report but did not have “any decisions or anything to read out on moving forward on that particular report.” She added, “It was a — certainly an important exercise to make sure we bring in legal experts from both sides, in a bipartisan way, to kind of take a look — take a look at the courts.”
Caroline Fredrickson, who was a member of the commission and is a professor at Georgetown Law, said the commission only interacted with the president once after submitting its report. In December 2022, its members were invited to the White House and met briefly with Biden in the Treaty Room of the Eisenhower Executive Office Building. But Fredrickson said the meeting was largely an opportunity for the president to thank the members for their work, not to discuss the report or its recommendations.
“With his history and the fact that he set up this commission in the first place, I think it indicates that he is playing a bit of a longer game on this issue than people would like,” Frederickson said of Biden.
Fredrickson, who supports court expansion and term limits, said the court’s latest term only confirmed her view that it is in “desperate need” of reforms.
“We have a very problematic system in which we have a court that can assert these incredible powers that affect all of our lives and they’re not of momentary import, but they can affect generations,” she said. “It’s a very radical approach to governing, to have a court that can act like a monarchy. It does destabilize our democracy quite a bit.”
Even before the most controversial decisions, the Supreme Court faced intense scrutiny in recent weeks after revelations by ProPublica that Justices Clarence Thomas and Samuel Alito had accepted luxury trips from prominent Republican donors over the years. Neither justice disclosed the trips, saying they were advised they did not need to.
But Democrats, who have been infuriated by the lax rules for the Supreme Court, have vowed to try to tighten ethics rules for the justices, vowing to push legislation if the justices do not adopt an ethics code on their own.
“The highest court in the land should not have the lowest ethical standards. But for too long that has been the case with the United States Supreme Court. That needs to change,” Sen. Richard J. Durbin (D-Ill.), who chairs the Senate Judiciary Committee, said in a joint statement with Sen. Sheldon Whitehouse (D-R.I.), who chairs a subcommittee with jurisdiction over the federal judiciary.