Furor over the Supreme Court could be the key to Biden’s reelection

President Biden has a large oil painting of Franklin Delano Roosevelt hanging prominently in the Oval Office. And as he gears up for the 2024 campaign, there is much that he can learn from FDR.

He should follow the example of what Roosevelt did during his first reelection campaign and do everything he can to make the radicalism of the Supreme Court’s ultra-conservative justices into a voting issue next year.

A quick history lesson:

After the court had rejected a number of New Deal initiatives, according to an article in The Nation, “Democrats charg[ed] that a court made up of nine old men appointed by presidents ‘now dead or repudiated’ had made itself […] ‘the sovereign power of the United States.’”

Roosevelt genuinely believed, as his biographer H.W. Brands observes, “that in compelling the Supreme Court to pay attention to modern conditions he was doing the work of democracy.” And so he put forward a plan — ultimately unsuccessful — that would have enabled him to “name a new justice for every sitting member of the court who did not resign six months after reaching the age of 70.”

In response, Republicans defended the court, claiming that it was protecting “the individual citizen in his constitutional rights” against the threats posed by New Deal collectivism. They promised in their 1936 platform that year “to resist all attempts to impair the authority of the Supreme Court of the United States, the final protector of the rights of our citizens against the arbitrary encroachments of the legislative and executive branches of government. There can be no individual liberty without an independent judiciary.”

As with FDR, “compelling the Supreme Court to pay attention to modern conditions” should be reason enough for Biden to take on the high court in the coming presidential campaign.

To date, Biden has seemed ambivalent about how to respond to the court and what it has been doing in the years since his predecessor managed to produce a six-justice conservative supermajority. In the past two years, Biden has been more explicit in criticizing specific Supreme Court decisions and increasingly outspoken about the court’s overall direction. Yet he has not gotten on board with calls to add justices or imposing term limits.

In 2024, he doesn’t have to go full-bore on court reform to rally his base and remind voters of what the Supreme Court has been doing to roll back rights and favor dark money groups with which it seems to be aligned.

In his 2020 campaign, Biden tried to walk a fine line when he talked about the Supreme Court. He agreed that the court was even then “getting out of whack,” but he did not endorse proposals for reform that many activists were advancing.

Biden warned Democrats against responding to every bad court decision.

In an interview on “60 Minutes” in October 2020, Biden explained, “The last thing we need to do is turn the Supreme Court into just a political football [and] whoever has the most votes gets whatever they want. Presidents come and go. Supreme Court justices stay for generations.”

His 2020 campaign promise to appoint a commission to study the court and to examine reform proposals satisfied few, as did the work of the commission itself.

Things began to change for Biden in 2022, however, when the Supreme Court refused to block Texas’s infamous SB8, legislation authorizing private enforcement of the state’s anti-abortion laws. In a written statement, the White House denounced “The Supreme Court’s ruling […] (as) an unprecedented assault on a woman’s constitutional rights. […] Rather than use its supreme authority to ensure justice could be fairly sought, the highest Court of our land will allow millions of women in Texas in need of critical reproductive care to suffer while courts sift through procedural complexities.”

When, last year, the Court overturned Roe v. Wade, the president spoke out himself. He labelled the Dobbs decision the “realization of an extreme ideology and a tragic error.” Biden warned, “This is an extreme and dangerous path the court is now taking us on.”

And, in a preview of what he should do in 2024, he urged voters to think about the court when they cast their ballots in the 2022 congressional election. “Roe,” Biden said, “is on the ballot. Personal freedoms are on the ballot — the right to privacy, liberty, equality. […] With your vote, you can act.”

His strategy bore fruit as voters rallied to the defense of abortion rights.

Responding to last week’s decisions on affirmative action, gay rights and student loan forgiveness, Biden escalated his criticism of the court.

In an interview on MSNBC the night after the court handed down its affirmative action decision, Biden alleged, “This court has done more to unravel basic rights than any other in recent history — it’s not normal. … Take a look at overruling Roe v. Wade. Take a look at what it did today. Take a look at how it’s ruled on a number of issues that have been precedent for 50, 60 years sometimes, and that’s what I meant by not normal.”

The president also accused the court of ignoring what “the Constitution says: ‘We hold these truths to be self-evident, all men and women are created equal, endowed by their creator.’” That the phrase is in the declaration, not the Constitution, should not distract us from his larger point that what the current court is doing is un-American.

Biden concluded, “The vast majority of the American people don’t agree with a lot of the decisions this court is making.” Initial polls suggest the president is wrong at least with respect to the affirmative action decision, but whether that will be true for the gay rights and student loan forgiveness decisions remains to be seen.

We do know that today only 31 percent of respondents in an NBC News poll released this week held a positive view of the court — a record low since the poll first asked about the court in 1992.

And, like the Republicans in 1936, former President Trump has rushed to the defense of the court. He called the Supreme Court’s rejection of affirmative action “a great day for America,” and explained that “people with extraordinary ability and everything else necessary for success, including future greatness for our Country, are finally being rewarded.”

So the contest over the Supreme Court is teed up. Like FDR, Biden should remind Americans what is at stake when the court sets itself up against the “modern conditions” of democracy and rolls back racial progress, protects those who are hostile to gay rights and blocks much-needed financial relief for millions of young Americans.

Austin Sarat (@ljstprof) is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. He is author of numerous books on America’s death penalty, including “Gruesome Spectacles: Botched Executions and America’s Death Penalty” and “Lethal Injection and the False Promise of Humane Execution.” The views expressed here do not represent Amherst College.