It’s an unfortunate omission. But it’s one Biden is not likely to correct before November.
We’ve gotten used to the idea of Republican presidential candidates promising to move the courts in a conservative direction so they can carry out a highly ideological agenda, while Democrats will wait until you ask them, and then say, “Oh right, the courts, sure, very important. Now, about health care …”
Despite his pledge to appoint a black woman — which is about representation, not the substance of what the Supreme Court decides or what its general orientation should be — it isn’t something Biden has campaigned on. And it’s one area in which he refused to be pulled toward more fundamental reform, even as many other Democrats were.
The idea of expanding the Supreme Court by adding seats — something that has been done in the past and is a matter of simple legislation — gained currency after Senate Majority Leader Mitch McConnell’s (R-Ky.) theft of a court seat allowed President Trump to fill two vacancies, producing the 5-4 conservative majority we have now. A number of progressive groups now support expanding the court, and during the primaries they convinced multiple candidates to say they were at least open to considering it.
Biden, however, was not among them. But it’s more than just his resistance to expanding the court. He doesn’t seem particularly interested in making the court a campaign issue.
That’s despite the fact that the Supreme Court not only touches on virtually every policy area, it is the bulwark of Republican minority rule — gutting the Voting Rights Act, rubber-stamping every GOP voter suppression effort and ensuring that Republicans can retain power despite their inability to win the support of a majority of the public.
But Biden is not telling anyone that the reason they should vote for him is to move the courts in a liberal direction. That’s despite the fact that it could be an issue that helps keep wavering Democrats in his corner and encourages them to turn out to vote.
And the threat is enormous. Nobody should be fooled by a couple of cases in which Chief Justice John G. Roberts Jr. sided with liberals — he’s a savvy political operator who knows when his own party has put itself in a dangerous position and needs to be held back. The truth is that the court has moved steadily to the right in recent years and will continue to do so as long as it remains in the control of conservatives.
And with Ruth Bader Ginsburg and Stephen G. Breyer both in their 80s, should Trump win a second term we could easily see a 7-2 conservative majority in which the median vote is not Roberts but Neil M. Gorsuch or Brett M. Kavanaugh.
Conservatives certainly know that, but at the moment they’re feeling as though they haven’t gotten quite what they were promised from this court. Despite the five conservative justices, Roe v. Wade has not been overturned, gay rights have not been reversed, Obamacare has not been struck down and modernity itself has not been rolled back.
One response would be to throw their hands up in despair and conclude that the courts won’t create the kind of America they want. Another response is to say that the few cases in which the court failed to deliver them the victories they sought make it more important than ever that they get more judges on the lower courts and more seats on the Supreme Court.
Which is what Trump tells them, over and over; every time he’s asked about what he accomplished so far or what he wants to do in the future, “judges” is one of the first things he mentions. But Biden doesn’t.
It’s possible that Biden just doesn’t think Democratic voters care enough about the courts, so it won’t be an issue that motivates them. More likely, he has concluded that the fundamental theme of his campaign should be quiet reassurance. He wants voters to conclude that he’ll bring competence and normalcy to the White House, in contrast to Trump’s nightmare of chaos and division.
So he may have decided that campaigning on the Supreme Court would serve only to remind people that it will be the locus of angry and unpleasant battles over confirmations and cases. Biden may have adopted a progressive agenda, but he still wants to present it in moderate packaging. So don’t expect him to make an issue of the courts, even as Trump continues to do just that.