President Biden has been conspicuously quiet on the topic of the Supreme Court. Even as there’s an active debate about what to do about a court that has too often exceeded the bounds of its authority, he has avoided regular criticism of it.
His restraint in discussing the court is true in general, and it’s especially true in his 2021 remarks to Congress and his 2022 State of the Union address: In the former, he did not mention the court once. In 2022, he devoted a paltry few sentences to thanking retiring Justice Stephen Breyer for his decades of service and to praising the qualifications of Judge Ketanji Brown Jackson, then a nominee. That was it.
Even a year ago, this restraint was a dubious choice. The court’s new conservative supermajority was already flexing its muscles. Months earlier, it permitted Texas to functionally ban abortion in the state through a cynical workaround designed to evade judicial review even while Roe v. Wade remained law. Yet the writing was on the wall: The court would overrule Roe. In June 2022 the court jettisoned the popular precedent in Dobbs v. Jackson Women’s Health Organization. In the same week, it also handed down decisions making it dramatically more difficult for our elected officials to regulate firearms and curtailed federal agencies’ ability to tackle pressing problems like climate change.
On Tuesday night President Biden has another opportunity to begin a deliberate, sustained process of reminding both the public and the justices that the court is part of the nation’s democratic fabric — and that neither the court’s decisions nor its members are beyond criticism.
The circumstances surrounding the assembly of the court’s conservative supermajority might have given the justices pause about proceeding so aggressively. Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett were each selected by a president, Donald Trump, who lost the popular vote by nearly three million votes. There were serious questions regarding whether Mr. Trump should have been able to make two of those appointments at all, following the death of Justices Antonin Scalia (replaced by Justice Gorsuch) and Ruth Bader Ginsburg (replaced by Justice Barrett). Justice Kavanaugh was confirmed 50 to 48, with the 50 senators voting yes representing just 44 percent of Americans. None of these democratic deficits render these justices or their presence unlawful, but the background does illustrate the perverseness of this majority’s eager willingness to override majority preferences.
In the wake of the dramatic last term, led by the Dobbs decision, the public did seem to be paying attention. The court’s approval rating collapsed. A Gallup poll from September reflected that only 47 percent of Americans trusted the Supreme Court, an all-time low since Gallup began polling the court’s approval in 1972.
But as public demonstrations of outrage have given way to the mostly private experience of the denial of abortion care, there are signs that the court’s approval ratings are creeping back up. A Marquette Law School poll from late January saw the court’s approval numbers at 47 percent, up from 38 percent in that same poll in July 2022.
So it’s critical that Mr. Biden makes sure Americans know what the court has done — and what it may yet do. Many items on Mr. Biden’s policy agenda are vulnerable to the court’s anti-democratic override. The court has already agreed to hear the challenge to Mr. Biden’s student loan forgiveness plan; there’s a very real chance that five or six justices will invalidate it.
Most meaningful gun regulation will be exceedingly difficult to defend under the Supreme Court’s newly minted test. Virtually every major executive branch agency initiative could fall under the court’s invented “major questions doctrine,” which purports to hold that “major questions” are for Congress, but really means to reserve such questions for the court.
In its current term, the court is likely to deal yet another blow to the already hobbled Voting Rights Act and seems all but certain to end affirmative action in higher education, which could have devastating consequences for the prospects of a genuinely multiracial democracy. It could be on the verge of endorsing some version of the unhinged “independent state legislature theory,” which would greenlight more extreme gerrymanders and potentially inject additional instability and uncertainty into both congressional and presidential elections (though the North Carolina Supreme Court, in deciding last week to rehear the underlying case, could render the U.S. Supreme Court’s case moot). The court may also strike down the Indian Child Welfare Act, a law that for nearly 50 years has been critical to preserving Native families and tribal sovereignty. It may also further limit executive agency authority.
There are many ideas focused on curtailing such an activist Supreme Court. Expand the court? Introduce term limits? Limit the court’s ability to decide certain types of cases? Renegotiate the terms of the longstanding settlement that the Supreme Court gets the last word on legal and constitutional questions, and that all other actors are bound by its answers?
Mr. Biden doesn’t need to take a position on any of those debates in this address. But what he can do in talking about the court Tuesday night — and in his presidency more broadly — is to emphasize that the relationship between the Supreme Court and public opinion is dialectical, and at different moments the court and public opinion have acted upon one another in different ways.
History tells us that the presidential bully pulpit can affect a Supreme Court that has gotten dangerously out of step with the public. One critical lesson from Franklin Delano Roosevelt’s failed effort to pack the court was his ultimate success in bringing about a shift in the Supreme Court’s willingness to uphold important New Deal policies, and in constitutional jurisprudence more broadly.
Mr. Biden may choose not to articulate a strong countervailing constitutional vision, but he should not leave this court’s vision of the Constitution, articulated in decisions like Dobbs, to go unchallenged.
In this, he should engage another audience for his State of the Union address, the primary audience sitting in front of him: Congress.
Whatever its partisan composition, Congress should have an institutional interest in ensuring that the Supreme Court not act as a super-legislature. But even if Kevin McCarthy’s House is unwilling to serve as a meaningful check on the court, there are things that the Senate can do — starting with holding hearings designed to shed light on the on-the-ground impact of the court’s cases, including Dobbs and Bruen, the case about gun regulations. Illustrating the danger of the court’s reasoning in Bruen, a federal appeals court just last week declared unconstitutional a federal law that disarms individuals subject to domestic violence restraining orders.
Mr. Biden has license to criticize the court directly — both individual opinions and the court’s broader trajectory and apparent agenda. Mr. Biden may be wary of doing this in light of the backlash against Senator Chuck Schumer’s pre-Dobbs critiques of the court, which drew condemnation from Chief Justice John Roberts, Senator Mitch McConnell and Ginni Thomas, who in her interview with the Jan. 6 committee suggested that this criticism was tantamount to, or responsible for, actual threats to the justices.
He might also be wary of criticizing the Supreme Court at the State of the Union when justices are in attendance. When President Barack Obama did so in 2010, taking issue with the Citizens United decision, Justice Samuel A. Alito, Jr. appeared to grimace and shake his head in response.
But the lesson here should not be that the court is beyond reproach, as many of the justices clearly would like.
Mr. Biden can avoid seeing his words twisted if he pairs a forceful critique of the court’s decisions with an equally forceful condemnation of anyone who would personally target the justices. This is a moment in which the prospect of political violence seems all too real, and as we saw when an armed man was arrested one block from the home of Justice Kavanaugh, the justices are not exempt from that.
Mr. Biden can and should condemn such acts in the strongest possible terms, and he should laud the recent passage of a bill providing for enhanced judicial security. He might even argue that gathering at the homes of justices, even for peaceful protests, should be off limits.
The Biden administration has made democracy a central focus of its agenda, and there is good evidence from the midterms that the public actually cares a great deal about democracy as a value. The court right now is a genuine threat to democracy — to both the choices made by our elected representatives and the processes by which we translate preferences into tangible policy.
President Biden can’t fix that in one night. But he can make sure that we’re paying attention.
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