Quasi-President Reverses: On Second Thought, Let's Revamp SCOTUS

AP Photo/Susan Walsh

Wait a minute -- which Quasi-President? We have two now, you know. We have the one who disappeared for a week and who became the first major-party nominee to withdraw from a presidential race. And then we have the one who spent most of her time as VP hiding from the media and talking in circles while out in public.

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This proposal to revamp the Supreme Court comes from the Quasi-President who opposed this plan before dropping out of the election. Or, at least that's what we're being told:

President Biden endorsed sweeping changes to the Supreme Court on Monday, calling for 18-year term limits for the justices and a binding, enforceable ethics code for the high court.

He is also pushing for a constitutional amendment that would prohibit blanket immunity for presidents, a rebuke of the Supreme Court after it ruled this month that former president Donald Trump is immune from prosecution for official acts.

For Biden, who has long resisted calls to reform the Supreme Court, the announcement Monday marked a major shift in his posture toward one of America’s three branches of government. Since assuming the presidency, the Supreme Court has veered sharply to the right — overturning Roe v. Wade, ending affirmative action in college admissions, weakening federal agencies’ power by overturning a 40-year decision and striking down Biden’s student-loan forgiveness program.

Allow me to indulge in a little pedantry, strictly in fun. "Since assuming the presidency, the Supreme Court has veered sharply to the right"? When did SCOTUS assume the presidency? Look, I occasionally make those kinds of errors too, so I'm not criticizing Tyler Pager as much as I am commiserating with him, but that's pretty amusing.

The rest of that sentence is pretty tendentious, however. The court's reversals in the last couple of terms corrects earlier decision when the court "veered sharply" to the Left, especially in Roe and Chevron. The court had repeatedly signaled their displeasure with the unconstitutional nature of affirmative-action discrimination for at least 20 years and warned repeatedly that their patience would run out. And presidents don't have the necessary appropriation authority to forgive student loans en masse, as per the black-letter law in Articles I and II.  

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In other words, the Supreme Court has taken and adjudicated cases based on constitutional issues. But this isn't really about the court so much as it is a signal for the upcoming election. The only question would be who's doing the signaling, and why. 

First off, this is nothing more than demagoguery. The "reforms" in this proposal would require a constitutional amendment. Such amendments require either two-thirds majorities in both chambers of Congress or an Article V convention to send it to the states. Thirty-eight state legislatures would then have to ratify the amendment, but it wouldn't get past the thresholds; such a proposal won't get that kind of a consensus in either chamber of Congress, and the Left lives in (unjustified) fear of an Article V convention. It's an absurd attempt to undermine the Supreme Court by the Left and find shortcuts to taking it back over again more quickly than current prospects allow.

So who does this demagoguery serve? It doesn't serve Biden, who's not running for president any longer. It does serve Kamala Harris, however, and appears to align much closer to the views of her progressive allies than it does Biden's previous positions on such changes.  

And it is miiiiiighty curious that this reversal comes after Biden went incognito for a week while withdrawing from the race by tweet, and then waiting three days to appear before a camera and offer no real explanation. The White House insists that Biden is fully capable of handling the duties of his office, but so far we have seen no evidence of that, and plenty of evidence to the contrary. Perhaps Biden himself has decided to fully throw in with the progressives -- his legislative agenda during this one term certainly suggests that, and his appointments to the courts and executive branch do as well. Biden plans to deliver a speech in Austin, TX this week to argue for this new plan, which goes beyond the recommendations of his own study commission -- whose findings Biden buried in the end anyway.

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However, it seems as though that Harris and her team are now making policy decisions for the rump of Biden's term in office. Harris needs to energize progressives, and one way of doing that is to make the Supreme Court an election issue. Conservatives do that as well in every election cycle, but they did so in the same way Democrats did: on the basis of appointment philosophies of the nominees. Revamping the Constitution is a far more radical and polarizing approach, which Biden used to recognize until, oh, a couple of weeks ago. 

This unique set of circumstances keeps raising the question of who's actually in charge at the White House. Is Biden making these decisions himself as the elected president, the person in whom these authorities are specifically vested? Or have other people begun setting policy? This differs from LBJ's sudden withdrawal in 1968; no one questioned LBJ's capacity to execute the duties of his office, and his withdrawal was predicated at least in part on difficult changes in war policy that would have otherwise looked like electoral pandering. Biden's withdrawal is clearly predicated on incapacity in some form, either immediate or short-term enough to require an emergency replacement on the November ballot, after having campaigned and won every primary and caucus in this cycle.

If Harris is actually running the executive branch, we need to know that. If Biden is still nominally running things but getting pressured to change directions to suit Harris' campaign, we should know that too. A quasi-presidency is far more significant and worrisome than a fantasy about constitutional amendments to revamp the Supreme Court. 

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David Strom 3:20 PM | November 15, 2024
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