Judicial robes aren't hurricane proof.
How Hurricane Biden could destroy the Roberts Court.
Jack Hughes points out that Biden’s Supreme Court reform committee is due to deliver their report. It’s the end of the world as we know it. Will Biden feel fine packing the court with friendly faces? Yes, writes Jack, and here’s why:
by Jack Hughes
The Roberts Court is ending the same way it began – with a hurricane. The Court’s decision in Whole Woman’s Health v. Jackson, delivered while Americans were facing Hurricane Ida, has created an opportunity for President Joe Biden to introduce the most sweeping changes to the U.S. Supreme Court in more than a century – an opportunity Biden has no choice but to seize given his mishandling of Afghanistan.
But first, some history. When President George W. Bush announced Justice John G. Roberts as his Supreme Court nominee in July 2005, he was intended to replace the retiring Sandra Day O’Connor. In September, a day after the Bush Administration botched its response to Hurricane Katrina (“Brownie, you’re doing a heck of a job”), Chief Justice William Rehnquist passed away creating a far more important vacancy.
As Jeffrey Toobin recounted in his book The Nine, “Bush needed good news so badly that he acted with a degree of haste that was nearly disrespectful to Rehnquist. At 8:01 a.m. on September 5, Labor Day, less than forty-eight hours after Rehnquist died, Bush summoned the news media to the Oval Office to announce that he was nominating [John] Roberts to be the seventeenth Chief Justice of the United States.”
Whether Bush would have considered other candidates more carefully if he were not in damage control mode over Katrina – literally and figuratively – is up for debate. Toobin notes in The Nine that Vice President Dick Cheney and other conservatives had urged Bush to elevate Justice Antonin Scalia to the position of Chief Justice. In the end, after Katrina, Bush opted for the safe, swift win to score back some points.
Fast-forward sixteen years to when New Orleans and the Gulf States began bracing for Hurricane Ida, a powerful Category 4 storm projected to make landfall and follow Katrina’s same destructive path as Americans approached Labor Day weekend. At that moment, an equally powerful political storm was heading directly towards the Supreme Court in the form of a challenge to the State of Texas’ new abortion rules.
This past week, a majority of the Roberts Court led by Justice Samuel Alito – the man who would ultimately replace Sandra Day O’Connor – declined an application for injunctive relief that would’ve paused and preserved the status quo, before the Texas law went into effect, so the Courts could consider its constitutionality. The decision is a political lifeline to a president who is floundering after a massive failure.
While the Biden Administration has not been criticized for its handling of Hurricane Ida, at least not as of this writing, the White House’s mishandling of the crisis in Afghanistan has made Biden as politically unpopular as Bush after Katrina. As such, like Bush, Biden is in desperate need of something to rally his base, replenish his political capital, and revive his administration’s fortunes before the 2022 midterms.
Biden is in desperate need of something to rally his base, replenish his political capital, and revive his administration’s fortunes.
During the final weeks of the 2020 presidential election, the issue of Supreme Court reform gained sudden urgency when Justice Ruth Bader Ginsburg died. President Donald Trump immediately nominated Amy Coney Barrett as her replacement, who was comfortably confirmed by the Republican-controlled Senate. The move angered progressives who pressured Biden to promise he’d appoint additional liberal judges.
Shortly after being sworn-in, Biden threw them a bone by creating a Presidential Commission on the Supreme Court which was tasked to do research and make recommendations on a range of possible reforms including increasing the size of the Court. The Presidential Commission was given six months to complete its work, which means it will be reporting back to the White House in the next month or two.
Until last week the Roberts Court had been on its very best behavior to avoid giving ammunition to those who favor increasing the number of Supreme Court justices. As we noted here in The Experiment back in July, Chief Justice Roberts had been following the strategy employed by his predecessor’s Charles Evans Hughes who successfully sidestepped Franklin Roosevelt’s court packing plan back in the 1930s.
Although Chief Justice Roberts was himself in the minority and wrote a dissenting opinion to the effect that he would have granted the injunctive relief sought in Whole Woman’s Health – joined by Justices Breyer and Kagan – the Court which bears his name has now given Biden a desperately needed chance to ‘change the channel’ on Afghanistan and the Taliban and target the Roberts Court as ‘Public Enemy No. 1’.
The day after the decision, Biden issued a statement which was only the first salvo of the fight: “The Supreme Court’s ruling overnight is an unprecedented assault on a woman’s constitutional rights…For the majority to this without a hearing, without the benefit of an opinion from a court below, without due consideration of the issues, insults the rule of law and the rights of all Americans to seek redress from our courts.”
The biggest insult to those injured by the Court’s 5-4 ruling was the decisive vote was cast by Justice Coney Barrett. Had the matter come before the Court a year ago, when Ruth Bader Ginsburg was still in that same seat, there’s no doubt it would’ve gone 5-4 in favor of pausing the new Texas abortion law. That one vote in this one case justified the worst fears of those who warned of a Trump takeover of the Court.
The biggest insult to those injured by the Court’s 5-4 ruling was the decisive vote was cast by Justice Coney Barrett.
The fact the conservative majority on the Roberts Court – though, again, not Chief Justice Roberts himself – issued this politically polarizing decision so close to when the Presidential Commission is due to report on its research and recommend reforms virtually ensures that Biden will face massively renewed pressure from progressive and moderate Democrats to take immediate action to alter the balance of the Court.
It’s doubtful Biden will need much convincing. Given the choice between staying on the defensive on Afghanistan, the COVID fourth wave, and inflation or going on the offensive against the Roberts Court, it’s safe to say Biden will jump at the chance to do the latter. In so doing Biden won’t take half measures, he’ll do something a lot more momentous and meaningful than merely encouraging Justice Breyer to retire.
White House Press Secretary Jen Psaki was asked if Biden’s position on expanding the Court had changed. Her answer, while vague, spoke volumes: “There’s an ongoing Court reform committee that has been meeting… They’re considering a range of issues and topics, including what the future of the Court looks like. I think the President will wait for that process to complete before making any evaluations.”
After Hurricane Katrina, President George W. Bush created the Roberts Court when he nominated John Roberts to become Chief Justice. In the aftermath of Hurricane Ida, President Joe Biden may decide to crater the Roberts Court by championing an increase the number of justices as the central issue of the 2022 midterms – putting it at the heart of the Democrat campaign to strengthen their hold on the U.S. Congress.
Jack Hughes is a communications consultant based in Canada. His previous contributions to The Experiment include “Same of Thrones,” “Tippecanoe and Agnew Anew,” “Harris / Shuri 2020,” “Bidenfeld,” “Firth and Firthiness,” “The Ballot of Bill McKay,” and “The World Wants ‘The West Wing,’” among others. His inexplicably extensive writings on Dan Quayle are “The Unusual Suspect,” “The Unusual Suspect II,” “The GOPfather,” “Porqua, CoQau?” and “Quayle’s Hunting Season.” Connect with him on LinkedIn here.
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