President Biden has resisted a full-throated attack on the Supreme Court or the individual justices, despite mounting pressure from activists and from within the Democratic Party.
The messages have been delivered publicly and privately by President Biden’s allies: He isn’t going after the Supreme Court hard enough.
In the two years since Mr. Biden took office, the court’s conservative majority has undermined or overturned abortion rights, affirmative action, gay rights, gun control and environmental regulation. It has blocked the president’s agenda on immigration, student loans, vaccine mandates and climate change.
The recent rulings are blockbuster conservative victories that could help Democrats whip up anger among women, young voters, environmental activists, Black people and members of the L.G.B.T.Q. community as the president looks toward the 2024 elections.
But despite mounting pressure, Mr. Biden has resisted a full-throated attack on the Supreme Court itself or the individual justices. He has denounced the court’s individual decisions, but has said he does not want to politicize the third branch of American democracy and risk undermining its authority forever.
The president’s approach falls short of what progressive activists and leading members of his own party have been urging: Go beyond just disagreeing with the court’s decisions and attack it as an institution. Single out its six conservative justices as corrupt MAGA Republicans who are in the pocket of special interests. Question the conservative court’s very legitimacy.
“He is an institutionalist at heart,” said Brian Fallon, a Democratic activist who has been waging a yearslong campaign to overhaul the Supreme Court. “Politicians of his vintage I think continue to have reverence for the court as an institution even though this current court, in its current composition, doesn’t deserve that reverence. But old habits die hard.”
A former senator who spent years presiding over Supreme Court nominations as chairman of the Judiciary Committee, Mr. Biden believes in the court’s potential as a force for good, according to people who are close to him. In his 2007 memoir, he speaks with reverence about the court, citing James Madison as he recounts the contentious fights he led over Republican nominees in the 1980s and 1990s. He has called the Supreme Court’s recent decisions “extreme” and “outrageous,” but in an interview on MSNBC, the president would not call the court “anti-democratic.”
“Its value system is different,” Mr. Biden said, focusing on the court’s rejection of abortion rights. “And its respect for institutions is different.”
Examinations of the past two years of Supreme Court decisions have revealed what longtime observers say is a clear shift to the right, making it by one measurement the most conservative court in nearly a decade. But despite several significant victories for the right last month, the court’s latest term also featured some liberal successes on the Voting Rights Act, immigration, the role of state legislatures in elections and Native American rights.
Still, Mr. Biden’s allies argue for a forceful denunciation of a court they see as wildly out of step with the country.
Some have suggested that the president focus on reports of cozy relationships between the conservative justices and rich donors to call the court corrupt. Others have pushed for him to embrace term limits for the justices. Adam Green, the co-founder of the Progressive Change Campaign Committee, has urged Democratic politicians to accuse the court of having a “legitimacy crisis.”
“We’d like to amplify anyone who uses this corruption/legitimacy messaging,” Mr. Green wrote to lawmakers a few weeks ago. “Do you think your office can work this line into public statements as decisions come down?”
Mr. Green has shared with Democratic politicians private polling data from Data for Progress, a progressive firm, that suggests there is support among the public for attacking the court as an institution. In their surveys, 62 percent said the court is “increasingly facing a legitimacy crisis.” Only 26 percent disagreed with that statement. The split was similar among independent voters.
“Critiquing the institution, if done at a high crescendo, hopefully gets the court to be on their best behavior in the future,” Mr. Green said.
The idea is catching on with some of the president’s leading allies.
“The fanatical MAGA right have captured the Supreme Court and achieved dangerous, regressive policies,” says Senator Chuck Schumer of New York, the chamber’s top Democrat. Senator Sheldon Whitehouse, Democrat of Rhode Island and a member of the Judiciary Committee, is unsparing in calling the judicial body “a captured court” that is “running amok without recourse.”
Representative Nancy Pelosi, the California Democrat and former House speaker, calls out Justices Clarence Thomas and Samuel Alito by name, calling their actions “shameful” and saying the “Republican-controlled court” has achieved a “dark, extreme vision” for the country. She has endorsed the idea of limiting the terms of Supreme Court justices.
There is some historical precedent for a president who wages a campaign against the Supreme Court and its rulings.
Richard Nixon campaigned in 1968 against the court’s liberal criminal justice decisions under Chief Justice Earl Warren. Theodore Roosevelt repeatedly denounced the court’s business rulings during his 1912 campaign. Franklin Roosevelt fought a losing battle to expand the size of the court after justices began dismantling parts of his economic agenda.
“When Supreme Courts are perceived as extreme or ideological, it can lead to political realignment, and it can become a defining issue in campaigns,” said Michael Waldman, the president and chief executive of the Brennan Center for Justice at the New York University School of Law. “That hasn’t happened yet. But all the ingredients are there.”
During Mr. Biden’s 2020 campaign, many progressives were urging him to consider dramatic reforms to the Supreme Court to counter the influence of its conservative members, including expanding the number of justices.
Not wanting to write off the concerns of progressives, Mr. Biden agreed to set up a commission to study the idea if he was elected. The group he created once in office produced a report that exposed deep divisions about the idea of increasing the number of justices to shift the power balance, a move known as “packing the court.” But the group did not take a position on that idea or other potential actions, like term limits.
Since the panel delivered their report at the end of 2021, the president has made few public comments about it.
Mr. Waldman, who was a member of the president’s study commission, said progressives have largely given up on the idea of convincing Mr. Biden to support expanding the court, because it is clear he opposes that idea. But Mr. Waldman said the president could still be more aggressive in the language he uses.
“There’s a long history of these issues being part of the presidential dialogue and debate, and it would be a missed opportunity, I think, if President Biden didn’t take that,” he said.
But Mr. Biden, it seems, is unwilling to go there — to the frustration of some members of his own party.
“His heart isn’t in it,” said Jeff Shesol, a speechwriter for former President Bill Clinton and the author of “Supreme Power: Franklin Roosevelt vs. the Supreme Court.”
“He’s clearly outraged by the decisions this court is reaching,” Mr. Shesol said. “He’s just never been that guy. As mad as he surely is about these decisions, he’s of the mind to ride it out.”
White House officials say Mr. Biden has demonstrated his willingness to criticize the court’s rulings on abortion, affirmative action and other breaks with longstanding legal precedents. And they said he is aggressively nominating a set of diverse judges to the federal bench, including the first Black woman on the Supreme Court.
Officials promised that will continue as Mr. Biden seeks a second term.
“President Biden is rallying a diverse coalition behind protecting the bedrock rights of the American people,” said Andrew Bates, a White House spokesman. “He’s making a forceful case, which majorities of the country and congressional Democrats agree with, against what he labels ‘extreme’ and ‘outrageous’ behavior from a court that is increasingly diminishing institutions by legislating from the bench.”
There have been a few recent moments when the president appeared to flirt with a more aggressive stance toward the court.
After the six conservative justices voted to wipe away the use of affirmative action by colleges and universities last month, a reporter wanted to know if Mr. Biden thought the Supreme Court had gone rogue.
“This,” the president said after thinking for a moment, “is not a normal court.”
It seemed like it might be the start of exactly what some of the president’s supporters had been calling for. In conversations with White House officials, Mr. Green had been told the president would not question the court’s legitimacy, but he remained hopeful that even saying the court is not “normal” was a step in the right direction.
“That will be in the history books,” Mr. Green said of the president’s comment.
But a few hours later, Mr. Biden made it very clear what he meant — and what he didn’t. He did not want to overly politicize the court, he told Nicolle Wallace during the MSNBC interview. He was just focused on decisions by the justices that he disagrees with, like their far-reaching rejection of abortion rights.
“What I meant by that is it’s done more to unravel basic rights and basic decisions than any court in recent history,” Mr. Biden said. “And that’s what I meant by ‘not normal.’”