Joe Biden's secret constitutional weapon

But close observers of Biden’s career have been quick to point out that his reference to the Ninth Amendment wasn’t merely a throwaway line. It wasn’t the first time in recent memory that Biden has singled out the amendment by name. In February of 2020, during a late-stage debate between the Democratic presidential hopefuls, then-candidate Biden also promised to select a Supreme Court nominee with an expansive reading of the Ninth Amendment, saying, “The only reason women have the right to choose is because it’s determined that there are unenumerated rights coming from the Ninth Amendment in the Constitution.”…

“It’s kind of a throwback in his mind to what was a moment of triumph for him, when he successfully led the opposition to the appointment of Robert Bork” in 1987, said Randy Barnett, a conservative legal scholar at the Georgetown Law Center and an expert on the history and jurisprudence of the Ninth Amendment.

The role that debates over the Ninth Amendment played in Bork’s infamous confirmation hearings is perhaps even less well known than the Ninth Amendment itself. But to those who remember this history, Biden’s recent comments suggest that he’s drawing on a lesson he learned during those hearings over three decades ago: that to wrest control of the high court from their conservative counterparts, liberals need to go on the offensive. And to do that, they need a new legal argument that provides their political views with the imprimatur of constitutional legitimacy — the same way conservative jurists used the Second Amendment to guarantee an individual right to bear arms.