This Supreme Court Is Not Normal

Joe Biden is right. “This is,” as he told reporters after the Supreme Court’s latest precedent-shattering decision killing affirmative action Thursday, “not a normal court.” And yet, the president is continuing to treat it like it is. Speaking to MSNBC’s Nicole Wallace Thursday, Biden stood by his characterization of the high court as a rogue body that has worked to “unravel basic rights” of Americans — but once again threw cold water on the kinds of reforms many in his own party have rallied around as the court descends into rank partisanship and scandal, shooting down court expansion as a “mistake” and implying more broadly that reform could “politicize” the court “in a way that is not healthy.”

But the court is already highly-politicized — it was captured by Republicans through political gamesmanship, many of its decisions have been explicitly political, and justices like Brett Kavanaugh and Samuel Alito have engaged in open partisanship — as it proved once again Friday, when the conservative majority ended its term by effectively authorizing businesses to discriminate against LGBTQ+ Americans under the First Amendment, and striking down Biden’s student debt loan forgiveness plan. The former — 303 Creative LLC v. Elenis — underscored this court’s particular disorder: It’s not just issuing materially destructive decisions; it’s the way it’s reaching them.

Penned by conservative Neil Gorsuch, the decision Friday held that a web designer could refuse to create a wedding website for a gay Couple if it violated her “views” on the LGBTQ community. It’s a substantively outrageous decision: As Sonia Sotomayor wrote in the dissent, the ruling “grants a business open to the public a constitutional right to refuse to serve members of a protected class” — a license, essentially, to discriminate, under the guise of free speech. But almost as appalling as the decision itself is the way the court rendered it: Lorie Smith, the designer in question, does not yet have a wedding website business and the gay couple cited in the early court filings may not even exist, as Melissa Gira Grant reported in the New Republic Thursday. The conservative majority ignored the lack of standing, the lack of injury, and the apparent lack of a gay couple in this case to issue a decision with sweeping implications for the LGBTQ+ community and beyond.

That isn’t merely the work of a conservative court. That’s the work of an activist court, apparently engineered for the express purpose of accomplishing through Supreme Court fiat what they could not do through the legislative process. “We cannot sit idly by and watch as this court erodes civil rights,” Representative Cori Bush wrote Friday. “It’s time to expand the Supreme Court.”

But Biden didn’t only reject that idea in his MSNBC interview; he was wishy-washy about the need for reform more broadly, responding to two questions on the matter by suggesting his impressive slate of judicial appointments and criticism of the court’s six conservative justices may be enough. “I think they may do too much harm,” Biden said of the right-wing majority, several members of which are likely to be on the bench for decades to come. “But I think if we start the process of trying to expand the court, we’re going to politicize it maybe forever in a way that is not healthy.”

Such an overhaul would be unlikely even if Biden did support it, given the dynamics of a divided Washington. But there are a host of other reforms that could be taken up, starting with the ethics legislation Senators Sheldon Whitehouse and Hank Johnson have put forth and continuing to the push for term limits for justices — an idea that even former House Speaker Nancy Pelosi has recently endorsed. Biden is right to be cautious about doing anything to make the court even more political. But if he truly believes this court is abnormal, as he correctly described it Thursday, he should recognize that it must be handled that way. Biden “said he feared attempts to reform the Court could politicize it in an unhealthy way,” as Demand Justice’s Brian Fallon wrote Friday. “But it is clear that the status quo is what’s unhealthy, with a corrupt, extreme majority wielding way more power than the Framers ever intended.”