Photograph by Nathaniel St. Clair
The Murdoch press should be happy that there won’t be another Biden presidency. Instead, outlets like the Wall Street Journal and the New York Post are furious at the outgoing president’s demand for Supreme Court reforms.
President Joe Biden announced a push to reform the Supreme Court in light of mounting criticism that the justices are both unmoored by real ethical constraints and that it has become too politically conservative, threatening voting rights, reproductive rights and constraints on industry. He has proposed 18-year term limits and a new code of conduct that would include, according to Reuters (7/29/24), “enforceable rules that would require the justices to disclose gifts, refrain from public political activity, and recuse themselves from cases in which they or their spouses have financial or other conflicts of interest.”
His vice president and likely Democratic presidential nominee Kamala Harris supports the plan (Financial Times, 7/29/24).
Gregg Jarrett at Fox News (7/30/24) called Biden’s announcement a “predictable and tiresome ploy to gin up votes.” On the news side, the network (7/30/24) said that Biden’s move “caters to the left-wing base of the Democrat Party from an administration that was once billed as a ‘moderate,’ critics argue.”
The Wall Street Journal editorial board (7/29/24) sees it as a left-wing attack on a wholesome, independent judiciary. “The president is putting the full weight of the Democratic Party behind an assault on judicial independence and the constitutional order,” the board said.
For the Journal, court reform is Biden’s political vendetta against the right: “As a senator in 1987, he helped to defeat the superbly qualified Robert Bork for the Court because Bork endorsed judicial originalism. But the originalists have prevailed in the long run and now have great influence on the Court. This is what infuriates him and his fellow Democrats. So they are now willing to destroy the Court to supposedly save it.”
The Democrats blocked Bork not because of his originalism, but because he endorsed a reactionary agenda. As the late Sen. Edward Kennedy (C-SPAN, 7/1/87) said at the time: “Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the government….”
When one looks at how recent Supreme Court decisions have led to state abortion bans (Reuters, 7/29/24), out-of-control police (MSNBC, 1/26/24) and the rolling back of voting rights (New York Times, 5/23/24), it becomes clear that the Democrats’ apprehension wasn’t unfounded. The Journal, of course, ignores that Biden was a pivotal ally for the judicial right in helping the controversial Clarence Thomas win Senate confirmation (Politico, 9/21/15).
And what particularly angers the Journal is that the reform would mean Supreme Court justices would “have to abide by the Code of Conduct of the Judicial Conference of the United States,” adding that they “already have a code of conduct they enforce that is nearly the same as that judicial code,” but that Democrats are demanding “outside enforcement.”
In other words, the Journal wants Supreme Court justices, who have life-time tenure, to police themselves. This is reminiscent of Republican demands that banks and other corporations carry out their business with little to no regulation, despite what social harm that could cause.
Both the Journal and the Post are particularly perturbed that such reform targeted two conservative stalwarts on the bench—Thomas (appointed by the elder George Bush) and Samuel Alito (an appointee of the younger Bush). The Post editorial board (7/29/24) complains that “the idea for term limits has come up only now, with conservatives holding a majority of the court’s nine seats,” adding that Democrats “were quite happy with lifetime appointments when left-leaning justices, like Ruth Bader Ginsburg, were in the majority.”
As a Republican-identified paper, the Post may have trouble with the concept of “majority.” After Ginsburg was appointed in 1993, there were exactly two justices on the Court appointed by Democrats, a number that held steady until 2009–10, when she was joined by Sonia Sotomoyer and Elena Kagan, making a four-vote minority bloc that was the largest Ginsburg was ever part of. (If the Post is thinking that Justice Anthony Kennedy, appointed by Ronald Reagan, was a crypto-liberal, they should recall that in close cases, he voted with the conservatives 71% of the time.)
Ginsburg should have been in the majority starting in 2016, when Justice Antonin Scalia died, but Republican Senate leader Mitch McConnell refused to even consider a replacement during an election year–a rule that somehow didn’t apply four years later, when Amy Coney Barrett was confirmed eight days before Election Day. It’s machinations like these that have maintained a Republican majority on the Supreme Court for the past 52 years.
The Post’s “why didn’t you say something sooner” complaint also ignores that Thomas and Alito have clear conflicts of interest (ProPublica, 4/6/23; NPR, 6/
It’s about time that all media, regardless of partisan allegiance, dispense with the fiction that Supreme Court justices are dispassionate Solomonic arbiters who are unswayed by emotion or political convictions. Books like CNN contributor Jeffrey Toobin’s The Nine (New York Times, 9/23/07) and law professor Herman Schwartz’ Right Wing Justice make clear that, since the the liberal days of the Warren Court, the American right has sought to ensure conservative control of the court system as a way to legislate from the judiciary, even when Democrats control the other branches of government.
Biden’s proposal, then, attempts to unwind the Republicans’ unchecked judicial power, which is key to undoing the civil rights gains of the Warren Court and to blocking progressive presidential administrations in the future. While Biden’s proposed changes face huge hurdles, at the very least his proposal invites the mainstream of America to face the idea that the court must be reformed to be a part of democratic order, and not an unaccountable council of unelected elders.
The public is ready to hear that. Last year, Pew Research (7/21/23) reported that the “favorable opinion of the US Supreme Court has declined to its lowest point in public opinion surveys dating to 1987.” At the same time, Gallup (9/29/23) noted that “39% see [the Supreme Court] as too conservative, and 17% as ‘too liberal,’” noting that the this “‘too conservative’ assessment of the court is the second highest historically, while the latest ‘too liberal’ reading matches the 2019 historical low for the measure.” Fifty-three percent of Americans want Thomas to retire (Miami Herald, 4/17/24).
So it’s no wonder the Post, Journal and Fox News are so mad about Supreme Court reform.
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