Understanding This: About the Court

On Monday, President Biden went to Texas to commemorate the 60th anniversary of the signing of the Civil Rights Act of 1964. The Act banned discrimination in public facilities including restaurants, hotels, and theaters. It integrated schools and banned employment discrimination on the basis of race, color, religion, sex, or national origin. The law was the most sweeping civil rights legislation since Reconstruction, and it has radically transformed our society over the years.

President Biden went to Texas to celebrate the completion of “the job that Lincoln started.” President Johnson nominated the first Black man, Thurgood Marshall, to a seat on the Supreme Court. Now, we have the all-but-official candidacy of the first Black woman running for the presidency. It is an awesome sweep of history.

But President Biden noted we live in an era where civil rights are being rolled back: voting rights, abortion, and affirmative action are only some of the recent items the Supreme Court has attacked. He connected the dots to Project 2025, which he called an “onslaught attacking the civil rights of Americans.”

He’s absolutely correct. Project 2025 includes some policies that should be unthinkable, like taking away birthright citizenship from existing American citizens or prohibiting schools and workplaces from engaging in initiatives popularly labeled “DEI” that focus on diversity, equity, and inclusion. Although Trump formally disavowed Project 2025 today, following Biden’s comments yesterday, many of its key points are a core part of his campaign rhetoric.

Like DEI, which is mentioned 39 times in Project 2025, always with an emphasis on eliminating policies that make it more possible for people who have been marginalized to take their place in society. It starts on page 4 with this comment, “The next conservative President must make the institutions of American civil society hard targets for woke culture warriors. This starts with deleting the terms sexual orientation and gender identity (“SOGI”), diversity, equity, and inclusion (“DEI”), gender, gender equality, gender equity, gender awareness, gender-sensitive, abortion, reproductive health, reproductive rights, and any other term used to deprive Americans of their First Amendment rights out of every federal rule, agency regulation, contract, grant, regulation, and piece of legislation that exists.” Trump has echoed much of that on the stump. You see how expansive the scope of rights rollback Trump intends to engage in is. Whether its Project 2025 or his campaign speeches, the substance is the same.

All of this is happening in an environment where Trump would take office knowing that he has immunity from prosecution for crimes committed while in office.

President Biden: "This nation was founded on the principle that there are no kings in America. Each of us is equal before the law, no one is above the law. And, for all practical purposes, the Court's [immunity] decision almost certainly means that the president can violate their oath, flout our laws, and face no consequences." The hypothetical that drives that home is the one offered by Justice Sonia Sotomayor during the oral argument for the immunity case: a president could order SEAL Team Six to assassinate a political rival. The consequences? None. He would be immune.

There are other hypos, but that’s the one that grabs you in your gut. Assassinate a political rival. Assassinate the candidate running against you. Assassinate anyone who gets in your way. In America, with the permission of the Supreme Court.

So, on Monday, while commemorating the 1964 Civil Rights Act, President Biden announced he is backing Supreme Court reform and offered three specific items:

• A Constitutional amendment revoking presidential immunity for crimes a former president committed while in office

• 18-year term limits for Supreme Court Justices

• A binding code of conduct for the Supreme Court

We all understand these are unlikely to come into being while Biden is in office. That would take Constitutional Amendment for the first two and, at a minimum, Congressional legislation to create a binding code. Republican House Speaker Mike Johnson called Biden’s proposals dead on arrival. But the important point here is that Biden has shifted the conversation and put it front and center. It’s no longer about whether there can be reform, it’s about what it will look like. Biden has opened the conversation and put it on the front burner to make sure as many Americans as possible have exposure to it.

The reality is that this is not our grandparents’ Court. It is not our parents’ Court. Ever since the decision in Citizens United that allowed corporations to inject unlimited amounts of money into our political bloodstream, unfairly influencing the outcome of elections, something dark has taken hold in our politics. As the President noted today, many of our fundamental rights have been gutted. The Court used to try and rule unanimously in earthquake cases. Brown v. Board, the case that ended discrimination in education, was 9-0. United States v. Nixon, the case that determined presidential immunity didn’t protect President Nixon from complying with subpoenas calling for him to turn over his tapes to the Independent Counsel, was unanimous. That’s a far cry from the 6-3 (5-4 on whether the government can use evidence involving official acts) opinion in Trump v. United States.

Joan Biskupic has a piece for CNN this morning, where she writes that Chief Justice John Roberts “made no serious effort” to write an opinion that could bring Justices Sotomayor, Kagan, and Jackson on board. There was no “cross-ideological agreement” along the lines that led to bipartisan majorities in other presidential powers cases. Biskupic writes that Roberts was focused on looking “beyond Trump,” as though that matters if he’s reelected.

The Court could have found middle ground. It could have moved forward without the delay that guaranteed Trump could proceed to the election without facing accountability at the hands of a jury. But it did not. Biskupic concluded that Roberts “appears to have abandoned his usual institutional concerns.” Well, yes. Clarence Thomas’ ethics violations (to say nothing of Justice Alito’s) remain unaddressed. Adherence to precedent was all but abandoned is a series of critical cases. And the final nail in the coffin was the decision in the immunity case.

It’s a tough moment. We rely on our courts to be the independent third branch of government that preserves checks and balances on the other two branches. They are not supposed to be unelected politicians in black robes. Permitting doubt to fester on the ethical issues at the same time decisions depart from longstanding legal principles of following precedent isn’t what you would you’d expect from someone who wants to ensure the health of the Court as an institution. Its decisions are enforced because the public has confidence in it, not because it has armies to send out to guarantee that its word is law.

It’s difficult for people who believe in the importance of the rule of law to have serious doubts about the nation’s highest Court. But those doubts are not a flaw in our understanding; they are a failure tolerated by the Court itself, mostly its conservative wing. The Court should have taken steps to restore our confidence. They have not, and so President Biden has stepped into that breach, creating space for a conversation that he hopes Kamala Harris will have the opportunity to finish.

Like we’ve said before, the Court is on the ballot.

We’re in this together,

Joyce