July 31, 2024

President Biden’s Swan Song: Attack SCOTUS

By Mark Oliva

President Joe Biden doesn’t plan on quietly exiting the political arena. He’s taking one last shot – albeit a wild swing – at the U.S. Supreme Court.

Call it a dog whistle to the progressive wing of the Democratic Party that’s been targeting the U.S. Supreme Court for a wide-variety of issues, a get-out-the-vote ploy to boost Vice President Kamala Harris in her bid for The White House as she replaces him on the party ticket or just sour grapes over a series of decisions – including those on gun control – that President Biden despises. Any and all could be true. What’s clear is President Biden’s play to remake the Supreme Court in his image would give gun control supporters an opportunity to wipe out recent rulings by the Supreme Court, including on the Second Amendment and restraining Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) regulatory overreach.

Parting Shot

President Biden announced his plan for U.S. Supreme Court that would upset the balance of power between the Executive, Legislative and Judicial Branches of the U.S. Government. He proposes to do away with lifetime appointments to the Supreme Court that keeps the justices above the political fray and instead, proposes term limits of 18 years, essentially guaranteeing sitting presidents that will follow him in the Oval Office of at least two appointments during a presidential administration.

“Term limits would help ensure that the Court’s membership changes with some regularity; make timing for Court nominations more predictable and less arbitrary; and reduce the chance that any single Presidency imposes undue influence for generations to come,” The White House press office published in a Fact Sheet of President Biden’s proposed Court overhaul. “President Biden supports a system in which the President would appoint a Justice every two years to spend eighteen years in active service on the Supreme Court.”

It would also render the Supreme Court an extension of politics of the day. That’s not what the Founding Fathers envisioned. The Founders wisely wanted a judiciary that was above the political fray. The White House argued that the United States is the “only major constitutional democracy that gives lifetime seats to its high court Justices.”

Smarter than the Founders?

That’s because the U.S. Supreme Court is a uniquely American idea. It is “distinctly American in concept and function,” said Chief Justice Charles Evans Hughes, the 11^th Chief Justice of the Supreme Court. It underscores what Alexander Hamilton and James Madison wrote about the Court’s role in the Federalist Papers. Hamilton argued that the Supreme Court ensured the will of the people, expressed through the U.S. Constitution, would be untethered to the will of the legislature, which can sway back and forth. Madison argued that the Court would protect the Constitution from politics and political bargaining, instead residing with the “reasoned judgement of independent judges.”

President Biden, though, thinks he’s got a better idea than the Founding Fathers. He’d rather tether the Supreme Court to political wills, an extension of the Executive Branch’s notions instead of being moored to the U.S. Constitution.

Just four years ago, when President Biden was campaigning for election, he told CBS’s 60 Minutes, “The last thing we need to do is turn the Supreme Court into just a political football – whoever has the most votes gets whatever they want. Presidents come and go. Supreme Court justices stay for generations.”

Former Attorney General Warns

Still, former U.S. Attorney General William Barr is warning that President Biden’s proposals are dangerous.

“In truth, ‘court reform’ is nothing more than a desperate attack to subvert the legitimacy of the Supreme Court because it contains a majority of justices committed to the Constitution and originalism,” he wrote in a Fox News op-ed. “If this coup succeeds, the rule of law will be over as the judiciary will become little more than a political tool of whomever holds power.”

Former AG Barr added, “Congress has no business interfering with the actions of the judiciary.  It is the separation of powers into three district branches of government that makes our nation strong. To protect religious freedom and all of our cherished liberties, judges must be able to make decisions without fear of partisan retribution from the executive or legislative branches.  Biden and Harris’ ‘court reform’ would destroy that.”

Antigun Congress Complicit

This isn’t the first time President Biden’s talked about tinkering with the Court. President Biden issued an Executive Order in 2021 forming the Presidential Commission on the Supreme Court of the United States. The commission’s final report was submitted in December 2021 that explored expanding the Court and introducing term limits.

President Biden wasn’t alone in his agenda to style the court in his image. Capitol Hill politicians have demanded the Supreme Court reflect their political agenda or face their wrath. Senate Majority Leader Chuck Schumer (D-N.Y.) infamously threatened Supreme Court justices while the Court was considering an abortion case in 2020.

“I want to tell you, Gorsuch… I want to tell you Kavanaugh…, you have released the whirlwind, and you will pay the price,” Sen. Schumer said. “You won’t know what hit you if you go forward with these awful decisions.”

That’s not the only time, though, that political zealotry has overtaken the longstanding norms regarding elected representatives’ respect for the independence of the judiciary. Sen. Sheldon Whitehouse (D-R.I.) took direct aim at the Supreme Court, particularly on matters of gun rights and gun control, when he wrote in an amicus brief arguing against NYSRPA v. City of New York, “Perhaps the Court can heal itself before the public demands it be ‘restructured in order to reduce the influence of politics.’ Particularly on the urgent issue of gun control, a nation desperately needs it to heal.” The irony of Sen. Whitehouse’s threat is stunning.

Vice President Rides Shotgun

President Biden has already picked up other supporters with his Court reform agenda and it’s not surprising why. For obvious reasons Vice President Kamala Harris publicly supported the term limits that would automatically replace justices that haven’t decided firearm-related cases the way the Biden-Harris administration team would like. That was a departure from nearly four years ago when then-Sen. Harris refused to answer a question about packing the Supreme Court. But now that the Court has ruled several times in the past few years against the wishes of gun control activists – including President Biden, Vice President Harris and those staffing The White House Office of Gun Violence Prevention – the very justices this “reform” package targets are the pro-Second Amendment justices that could be the first to go. That’s because they’re the senior-most, longest tenured justices on the bench; including Justice Clarence Thomas (32 years), Chief Justice Roberts (18 years) and Justice Alito (18 years)—all of whom have voted in favor of protecting Second Amendment rights.

“Are you and Joe Biden going to pack the Court if Judge Amy Coney Barrett is confirmed?” then Vice President Mike Pence asked then-Sen. Harris, explaining Supreme Court vacancies have been filled 29 times during election years. “But your party is actually openly advocating adding seats to the Supreme Court which has had nine seats for 150 years if you don’t get your way. This is a classic case of if you can’t win by the rules, you’re going to change the rules.

That’s what appears to be happening now. The Founders anticipated that this, too, may come to pass. That’s why they raised a high bar for any such changes if the political players didn’t like how the Supreme Court was deciding the cases before it. To change the lifetime appointments would require a Constitutional Amendment. Refer to Article V of the U.S. Constitution. President Biden’s proposals would require two-thirds approval from both the U.S. House of Representatives and U.S. Senate, and then must be ratified by three-fourths of the states. For those who want the numbers, that’s 290 yea votes in the House, 66 yea votes in the Senate and 38 states to agree that President Biden’s idea to subjugate the U.S. Supreme Court to political agendas is a good idea.

“But for now at least, Democrats are just dreaming (or messaging),” wrote Politico’s Eli Okun. “Either Supreme Court change would require some congressional Republicans to sign on, and a constitutional amendment on immunity would have to go through state legislatures, too.”

This could be simply dismissed as political pandering to gain votes in a competitive election cycle. However, it’s telling that President Biden, who claims his political opponent is a “threat to democracy,” is willing to burn down the very institutions that guarantee the survival of rule of law and the Republic itself.