President Joe Biden‘s complicated relationship with the Supreme Court is poised to spill over into the New Year.
The Supreme Court has delivered political wins for Biden, including providing him with the opportunity to appoint its first black woman justice, Ketanji Brown Jackson, and, indirectly, by motivating thousands of Democrats to vote in last month’s midterm elections by overturning a 50-year abortion access precedent. But Biden’s criticism of the court coincides with an erosion in public confidence, simultaneously offering him a convenient foil before the 2024 election cycle.
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The Supreme Court has had “an aura of being apolitical,” with its nine justices “simply relying on stare decisis,” the legal concept of precedent, according to former Maryland Democratic Attorney General Douglas Gansler.
“More recently, and sadly, the perception of the court has evolved into many people viewing it as an almost quasi-political arm of government,” he told the Washington Examiner.
Gansler, a partner at Cadwalader, Wickersham & Taft and a 2022 Maryland gubernatorial candidate, singled out the Supreme Court’s Dobbs v. Jackson Women’s Health Organization opinion “as one of the most political decisions in American history,” though it was handed down more than 20 years after Bush v. Gore. In Bush v. Gore, the court settled the 2000 Florida recount dispute between George W. Bush and Al Gore, which resulted in Bush winning that presidential election.
But the Dobbs ruling, leaked before it was officially released on June 24, did overturn Roe v. Wade, finding there is no constitutional right to an abortion. In its aftermath, abortion access became Democrats’ main motivation to vote in the midterm elections, according to numerous exit polls. Republicans, in turn, cited inflation as their No. 1 concern. And despite predictions of a Republican “red wave” amid 40-year-high consumer prices, Democrats expanded their Senate majority and held House Republicans to a four-seat majority, the narrowest since 1931.
“Not only did Dobbs overturn Roe based on political ideology, but it single-handedly [prevented] a previously expected Republican sweep, as well as politically mortally wounding Donald Trump,” Gansler said. “Other decisions by the Supreme Court will also have consequences for President Biden, though less so than Dobbs.”
Pending Supreme Court cases that will have repercussions for Biden include one regarding Title 42, a pandemic-era public health authority that a group of conservative-leaning states want to retain to avoid a migrant surge at the southern border, and two potentially undermining Biden’s federal student loan debt forgiveness proposal. Biden had faced pressure to rescind former President Donald Trump‘s reliance on Title 42, despite his administration appearing ill-prepared for an increase in border crossings, and to grant student debt relief, irrespective of economic concerns.
Former Arkansas U.S. Attorney Bud Cummins disagreed with Gansler, contending the Supreme Court is “deciding cases based on law and the U.S. Constitution, without regard for political impact,” “much to the chagrin of political consultants, but for the good of the country.”
“Promises to lift Title 42 and to forgive student loan debt were hollow,” the Arkansas chairman of Trump’s 2016 campaign and a member of his White House transition team said. “The political folks knew but simply didn’t care both were bad policy, or illegal, or both.”
The lawyer-consultant-lobbyist added: “Politicians manipulate voters with unaccountable promises that make the voters feel good but don’t actually do good.”
Gallup polling dating back to 2000 demonstrates the decline in Supreme Court public confidence. Last September, 40% of respondents approved of the court, compared to 58% who disapproved. Two months earlier, 43% approved of the court and 55% did not. In September 2000, 62% approved and 29% did not. In January 2021, one month after the court decided Bush v. Gore, 59% approved — 34% did not.
Biden’s rhetoric toward the Supreme Court has sharpened post-Dobbs, particularly regarding Justice Clarence Thomas after he encouraged other substantive due process precedent challenges, including for contraceptive access, gay marriage, and same-sex relationships, in his concurring opinion. Biden, for example, called the court “extreme” during a White House event this month marking the passage of the Respect for Marriage Act.
“The court has changed — not just in terms of its ideology, but in terms of its politics, the way it deals with things,” he added during a December fundraiser in Boston.
Although Biden kept Title 42 in place until last spring, White House press secretary Karine Jean-Pierre repeated this month that the administration is prepared for the expected migrant surge should the Supreme Court reverse the authority, which has been relied upon to expel people expeditiously, in June. The administration’s response includes moving immigrants to less crowded Border Patrol sectors, setting up more holding facilities, and hiring additional agents to help the 23,000 already deployed, supplemented by the use of upgraded surveillance and inspection technologies.
“We will continue to fully enforce our immigration laws in a fair, orderly, and humane manner,” Jean-Pierre said. “We are surging assistance to the border, as I’ve laid out very clearly, as [Department of Homeland Security] Secretary [Alejandro] Mayorkas has, … and so, we’re going to continue to do that.”
But during the same briefing, Jean-Pierre sidestepped questions about Biden’s position on Title 42 as the Justice Department seeks to undo it in court.
“So you’re saying you don’t support lifting Title 42?” one reporter asked.
“What I’m saying is that it is a court order that has been presented to us that we are going to comply with,” the press secretary replied.
White House preparations in case the Supreme Court blocks Biden’s student debt forgiveness proposal are less obvious, other than continuing the administration’s pandemic-prompted moratorium on federal loan repayments. While he had hoped Congress would cancel some debt, Biden announced in August he intended to forgive $10,000 in student loans for borrowers earning less than $125,000 a year and $20,000 for eligible Pell Grant recipients.
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“All options are on the table,” Jean-Pierre said in November. “As soon as we have something to share, we certainly will do that.”
