What should Joe Biden say about SCOTUS?


Next-President Biden has promised to say more about the future of the Supreme Court before November 3. In this essay, the author puts the question into historical context and offers some alternatives.

21 thoughts on “What should Joe Biden say about SCOTUS?

  1. What Biden SHOULD say about SCOTUS?

    He should say he is delighted to know that with a solid textualist majority, whichever party prevails in November will be constrained by the Rule of Law from enacting dangerous changes in any direction.

    I really don’t understand why the prospect of being limited by the Rule of Law is so horrifying to Democrats. Textualists do not advance either Liberal or Conservative cultural or economic policies, they simply require that parties act within the limits of the Constitution and the law.

    What is so awful about that which justifies throwing out the protections of the Rule of Law?


    1. Unilateral surrender by the Democrats is not an option.

      Your blather about the “Rule of Law” is kind of a joke since you are a supporter of the most lawless President in the history of our country. Similarly, the claim that the SCOTUS is ruled by “textualists” – whatever that means – is also a joke. Starting with – at least – Bush v Gore and continuing to this day those “textualists” have been political actors. Nothing in the text of the Constitution gave them the authority to interfere with Florida’s decision to carefully recount the vote. NOTHING. But they did so anyway for painfully obvious political reasons. Similarly where in the “text” are global corporations given the rights of individual persons? Answer : They are not. Citizens United = another major political decision.

      And we now have pending a new “textualist” Justice who has been explicitly chosen to fulfill a GOP legislative goal that they could not achieve in Congress – overturn the ACA in its entirety. And, of course, to help Trump “count the votes.” Again, something they have no legitimate role in according to the “text.”

      Senator Sheldon Whitehouse took his time at the Barrett hearings to lay out what is REALLY happening to our courts. In a nutshell they have been captured by dark money to do the bidding of the billionaire class. The overtly politicized courts are the last hold on power of a self-serving clique that hold the purse strings of the GOP. THAT is the real threat to “Rule of Law.”

      Liked by 2 people

      1. Whitehouse and his loony conspiracy theory? You are rapidly reaching the point where QAnon will have greater credibility.

        What is your specific problem with Bush V Gore? Was SCOTUS supposed to allow the Democrats to selectively recount only certain precincts using a perceived voter intent standard while not applying the same standard to other, less favorable district?

        And you never answer the question as to why the Sierra Club, which is a corporation owned by its members should be allowed free rein to act in the political sphere, but Exxon which is a corporation owned by its members, to do the same?

        As far as the ACA is concerned, do you want to keep it in effect if it is, indeed, unConstitutional? (more accurately if some parts are unConstititional)


        1. There is nothing “loony” about the presentation that Whitehouse gave. Fact are not “loony.” Throwing out names like “loony” does not change a single fact.

          Florida has its own sovereign government. It has its own legislature and courts. As long as we have the Electoral College each state has a sovereign right to chose it Electors any way it wants. And by the way, the recount would have gone smoothly if paid GOP goons bussed in from out of state had not physically threatened the officials doing that work.

          I would be fine with corporations and clubs being treated the same way as far as campaign finance is concerned. Unions too. Let them advise their stakeholders who to support and why and let the actual people act or not as they choose.

          The ACA was found Constitutional already. And the part that was most at risk – the mandate – has been removed. This is CLEARLY an attempt to legislate from the bench a policy that the GOP could not overturn in the Congress.

          Liked by 1 person

          1. If the remainder of the ACA is indeed Constitutional and legal, you have nothing to worry about. That’s the thing about textualists. they don’t impose what they think is a good idea, they just determine what was meant by the legislatures that pass a law and measure that against the powers authorized by the Constitution. They don’t determine policy.

            States do have wide latitude in how they conduct elections, within the restraints of Federal election law. In FL, the Democrats sought to evade the principle of one man, one vote, by selectively searching for missed votes in heavily Democrat counties and not in others, effectively giving Democrat votes more weight. They refused to accept a statewide recount and fought that in court until the clock ran out.

            Are you going to contend they were right to do so?


          2. I think you have your facts a little bit skewed. Florida’s Supreme Court ruled that there be a state-wide manual recount – not just in Democratic counties. SCOTUS stopped that recount and then simply over-ruled them and gave the election to Bush.

            And none of this would have happened had there not been that Brooks Brothers riot which caused the vote counting to be stopped. How does THAT fit in with your love of the “Rule of Law?”

            Liked by 1 person

          3. I don’t think so. Here’s a timeline..


            The FL Supreme Court first tried to allow the selective recount, but when SCOTUS had rejected that, suggested a statewide recount of those ballots where there was no Presidential vote machine recorded. But that was 12 days after the Nov 26 deadline set by FL law.

            By the time the FL court was willing to have a statewide recount, it was too late.

            In any case, New organizations paid for a full manual recount and Bush won by even more. The only way Gore could have won was by the selective recount if it’s chosen counties.


    2. RE: “He should say he is delighted to know that with a solid textualist majority, whichever party prevails in November will be constrained by the Rule of Law from enacting dangerous changes in any direction.”

      That being the right answer, I expect Biden will say something that sounds a lot like it, but isn’t.

      I imagine Biden will spew out a few fancy legal terms like “stare decisis,” then propose a constitutional amendment to enable SCOTUS to be composed of younger justices. Something like that would work politically for him, and be meaningless as a practical matter.


          1. Term limits for SCOTUS.

            You MAY be right on that point. Lifetime appointments are an interpretation. As the article pointed out, the Constitutional requirement could be met by continuing the pay of retired Justices since it is their pay that is explicitly addressed. But no matter. There is no need to end lifetime tenure to reform the Court.


          2. RE: “Lifetime appointments are an interpretation.”

            No, they are a consequence of the plain language: “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour,”

            But I doubt Biden will say anything meaningful about reforming SCOTUS.


          3. “But I doubt Biden will say anything meaningful about reforming SCOTUS.”

            I expect – and hope – that you are quite correct on that point. He should say as little as possible on a subject that the Trump campaign will be distorting no matter what he says. He should speak in platitudes if he says anything at all and keep ALL options on the table for future leverage. For example, if as intended by Trump, SCOTUS cancels the ACA the cry for SCOTUS reform will be deafening. Maybe the threat of a court reorganization will make these overly political Justices think twice on this and other issues.


  2. He should say he is not interested in politicizing the court and suffering massive public pushback resulting in political suicide of his party. FDR tried it and suffered an embarrassing defeat even from his own party because they knew the consequences.


    1. Whether the re-organization of the court will be “political suicide” or not depends on what it does now that it is another political arm of the GOP. For example, if it kills the ACA – which the GOP has been unable to do in Congress after about 50 tries – the people will demand that something be done. And it will reward those who do it.

      Liked by 1 person

      1. The supreme court doesn’t legislate, it interprets LAW. Don’t you even know the difference or are you just judge shopping?


        1. The ACA – There has never been a clearer case of a party trying to use the Courts to achieve a legislative agenda that they could not get done otherwise. And, when they succeed with the help of brand new rushed-through Justice Barret the shit is going to hit the fan. Bigly.

          Liked by 1 person

          1. First, you dont know any future outcomes and only assume rulings against the ACA but more importantly, why do you fear constitutional law?


          2. Bobr, I said that the GOP is “trying to use the Courts to overturn” the ACA and that IS something that they tried to do in Congress for ten years without success.

            I do not have to assume anything to know that they are “trying.” They have gone to court repeatedly even after the ACA passed SCOTUS initially. And now Trump has fulfilled his promise to appoint a Justice who will vote with his administration to throw it out altogether. As soon as Judge Barrett was put on the Federalist Society short list, she published a scathing criticism of Chief Justice Roberts’s vote to save the ACA in that first challenge. THAT is why she was chosen.


            Her pretending to not be aware of what Trump had promised about is betoken of a LIAR. Of course she knew what the President had promised.

            Obviously, the question you asked is one YOU should answer.

            Liked by 1 person

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