J.D. Tuccille: Joe Biden can't handle Supreme Court frustrating his quest for absolute power (2024)

On Saturday, President Joe Biden attacked the Supreme Court of the United States. On Sunday, he was joined by Sen. Chris Murphy (D-Conn.), who got downright nasty about two of the justices. Their words followed those of critics, who tried to turn Justice Samuel Alito’s religious beliefs and his wife’s flag-flying habits into a scandal — after making an issue of Justice Clarence Thomas’s friendship with a wealthy supporter of conservative causes. It almost seems like a concerted attack on the Supreme Court. Because it is.

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“Look, the fact of the matter is that this has never been a court that’s been this far out of step,” Biden insisted at a June 15 Los Angeles campaign fundraiser. There, he voiced grievances with justices who have voided executive actions and ruled against his policy preferences.

The next day, Murphy told CNN’s Jake Tapper, “There’s a crisis on the court, in particular with respect to Justice Alito and Justice Thomas. What Justice Thomas is engaged in is just a grift, right? He’s got a major political player on the outside who absolutely has political and business interests at the court paying off a justice. Justice Alito is openly displaying affiliation with political causes in public.”

Murphy referred to Thomas’s friendship with Harlan Crow, a wealthy businessman of the sort who pals around with Washington, D.C. types. A world of private jets is alien to most people, but it’s not unusual for a city in which one of Murphy’s colleagues, Sen. Bob Menendez (D-N.J.), allegedly pocketed gold bars and cash for favours to benefit Egypt’s government and others.

By comparison, Thomas joined his colleagues in declining an appeal involving a company in which the Crow family had a minority interest, and Crow had been a member of trade groups and think tank boards that filed amicus briefs to the top court. What Murphy had was popgun-level ammunition against the justice.

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The case against Alito is weaker still. It involves his wife’s propensity for flying flags, including an upside-down American flag that can indicate distress, and a Revolution-era “Appeal to Heaven” banner that nobody knew was suspect until somebody labelled it a sign of extremism. San Francisco pulled its copy of the flag down, which had flown for decades, after belatedly getting the memo. Alito, a Catholic, was also called out for agreeing with faith-based sentiments about the country’s direction.

Oddly, only days before attacking the justices, Murphy praised the Supreme Court for unanimously upholding access to mifepristone for ending pregnancies. And there’s the catch: for Biden, Murphy and many who share their views, the courts are legitimate only when they rule their way.

Writing for Slate in 2018, New York University law professor Christopher John Sprigman argued that the left should “get over” its affection for courts and the Constitution.

“Progressives must now at the very least reckon with the fact that the Supreme Court never was the progressive champion that the left believed it to be and plot a path forward from that premise…. The question, then, becomes how to shrink the power of courts,” he wrote.

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Elie Mystal, justice correspondent for The Nation and author of a book arguing that the Constitution is “trash” agrees. Last summer, he hosted a podcast with Harvard Law School professor Nikolas Bowie to discuss how to “delegitimize the Supreme Court.”

“The source of the problem is the Supreme Court’s power to invalidate federal law,” commented Bowie. Congress, he said, should interpret its own laws, subject only to the will of the voters.

“The Supreme Court’s approval rating actually needs to be a lot lower,” Mystal concurred. “The people need to agree that the court is illegitimate before Congress and the president are likely to rediscover their own constitutional powers.”

Public approval of the Supreme Court has declined (mostly among Democrats, says Gallup) — to an average near 40 per cent. But that’s not far off the president’s 39 per cent and almost double Congress’s 18 per cent. But, in the absence of mass willingness to ignore the country’s judicial branch, Democrats have been looking for ways to bypass the Supreme Court or otherwise convert it to a rubber stamp.

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In 2022,The Washington Postnoted that suggested reforms have included switching from life tenure to fixed terms, as well as “expanding, or ‘packing,’ the court beyond its current nine seats,” a scheme that got Franklin Delano Roosevelt in trouble.

That’s quite a dangerous recipe for unrestrained power exercised by idealogues convinced of their righteousness. It’s also one that could easily be adopted by other political factions and turned to their purposes. There’s a growing sentiment in some parts of the political right to do exactly that.

In 2020, Harvard Law Professor and conservative scholar Adrian Vermeule wrote a high-profile essay advocating “common good constitutionalism” that is “not enslaved to the original meaning of the Constitution.” Vermeule called for a new conservatism that would openly legislate morality and “ensure that the ruler has the power needed to rule well” because “promoting a substantive vision of the good is, always and everywhere, the proper function of rulers.”

The Supreme Court’s restrictions on state power “will prove vulnerable” under his vision, he added.

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Vermeule immediately came under fire, but “the importance of Vermeule’s essay also derives from the author’s deft attacks on and selective appropriation of progressive legal assumptions,” Damon Linker observed in The Week. He pointed out that Vermeule repurposed “widely shared progressive arguments and assertions about the legitimacy of using law to advance and enforce comprehensive moral views.”

A world in which Harvard’s Bowie and Vermeule successfully disempower the Supreme Court and the constitutional restraints it places upon government is one in which they and their opposing factions war for absolute power to impose their visions of how all Americans should live.

For all its flaws as a human institution, the Supreme Court functions, imperfectly, to restrain the state so that elections don’t become existential battles that nobody can afford to lose. True, government extends its reach ever further into our lives anyway, but “delegitimizing” or otherwise disempowering the court to achieve final victory for one idea of the good life will guarantee all-out conflict.

The Supreme Court undoubtedly frustrates politicians and ideologues. That’s what it’s supposed to do.

National Post

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