[Producer’s note: Due to a phone system failure during production, the audio quality of this interview segment is substandard. Apologies to all of our BTL affiliates and listeners.]
Over the past year, the U.S. Supreme Court’s right-wing extremist supermajority ignored decades of precedents to remove federal protection for abortion rights, weakened environmental regulations and struck down gun safety laws. In the final week of its last term, the court majority ruled that a Colorado nondiscrimination law that made it illegal for businesses to discriminate against LGBTQ customers was unconstitutional, effectively
ended affirmative action in college admissions and blocked President Biden’s plan for student debt relief.
The high court had previously ruled in the 2010 Citizens United case that corporations are people, opening up the floodgates of unaccountable and unlimited campaign cash in our electoral system, as well as gutted the Voting Rights Act in 2013 that ushered in the passage of dozens of racially targeted voter suppression laws in Republican-controlled states.
With reactionary politicians in robes now firmly in control of the Supreme Court and on course to repeal many of the advances for civil and human rights made over the last 100 years, there are growing calls for intervention through expanding the number of the high court’s justices, or the imposition of term limits. When asked in a recent interview if he supported such measures, President Biden rejected these proposals, maintaining that such actions would “politicize the court in a way that is not healthy.” Between The Lines’ Scott Harris spoke with Ben Burgis, adjunct professor of philosophy at Rutgers University, who explains why he believes the Supreme Court is already dangerously politicized and that reform is urgently needed.
BEN BURGIS: It’s not really the case that the justices of the Supreme Court are these dispassionate legal scholars who are just trying to commune with Madison and Hamilton and channel the event of the writing of the Constitution. These are political actors. It is not a coincidence that in these cases that we’ve just been talking about, all of the people that we quite correctly refer to as conservative justices voted for the conservative ruling and all of the people we think of as liberal justices voted against it, because you’re not much of a constitutional lawyer if you can’t find an argument within the majestic ambiguities of this Constitution for any of these things.
You know, really what these are is these are political actors. And I think in a particularly galling way right now, I mean, what makes it sting more than usual is that not only is there this large right-wing majority on the court now, but it’s made up of justices who were appointed by two presidents — who, at least initially, Bush won reelection, but Trump additionally lost the popular vote — so there are these people who most Americans who voted didn’t vote for, who became president, who appointed these people who are now in a position to impose conservative policy preferences, in some cases overturn precedents that are several decades old that, you know, that felt like they were just going to stay there forever.
And really, the question is, what are the other branches of government going to do to respond to it?
And unfortunately, right now, Joe Biden’s answer seems to be nothing.
SCOTT HARRIS: Yeah. And what is it about Joe Biden? Why do you think he rejects out of hand these solutions that have been supported by some members of his own party in Congress that includes imposing term limits on the justices, as well as expanding the court, which has been done several times through our history.
BEN BURGIS: Yeah, I mean, so the idea that Joe Biden has that it would politicize the court to do those things only makes sense if you think that it’s a nonpolitical institution, which kind of, for reasons we already talked about, I think makes very little sense. I think that what it gets down to is that Joe Biden is a centrist Democrat.
And of course, in several of these cases that we’ve been talking about, he would prefer more liberal rulings. That’s why he’s expressing a little frustration with the court by calling them not normal. But ultimately, I think that like most centrists, he is more concerned with the stability of American institutions than he is with the outcome of any particular one of these cases.
I mean, if you go back and look at Joe Biden’s record over the course of his several decades in public life as a senator from Delaware who was sort of nicknamed the senator from the credit card companies that were headquartered in Delaware. If you read Branko Marcetic’s book about Joe Biden, “Yesterday’s Man,” he gets into a lot of the stuff there.
You know, he was never any kind of left-wing firebrand by any means. He was a sort of tough on crime, tough on people who declared bankruptcy — famously — kind of center right Democrat. And I’m sure he would have preferred that the Supreme Court had ruled differently on abortion and affirmative action. But I think his and several of these other cases, but ultimately, his priority list is just going to be different from anybody who sees current American society as fundamentally more unjust. And just one other point about this, that it’s not even that Joe Biden’s priority list is different from like what, you know, some socialist president’s priority list would be, what Bernie Sanders would be if he were elected president, etc.
FDR, one of the most revered Democratic presidents of all time, actually did propose a court expansion in 1937 when the Supreme Court kept blocking New Deal initiatives. And even though, you know, Congress didn’t go along with it, it’s something that does seem to have had some effect in moderating the court’s behavior, because I think they were actually worried about getting, you know, serious pushback if this happened.
And, you know, so the question is, “Well, was it wrong for FDR to do it then?” If so, why was it wrong? And I know everybody always says, “Well, then the Republicans would do the same thing.” Okay, fine. But if both parties, when they’re in power and they sense that the Supreme Court is over-reaching, exerted some counter influence and tried to to push back against what the other court was doing, then ultimately you know, the decision is made by the voters — which I am pretty happy with, because I like democracy.
SCOTT HARRIS: Well, I want to thank you. And just a quick last question and that would be What do you think are individual voters’ role in this right now? What action can we take as individuals or groups of individuals to put pressure on the Biden administration, Congress and other levers of power in Washington and in the states to challenge what the Supreme Court has been doing?
BEN BURGIS: And it ultimately, I think we’re you know, we’re going to need political leadership that’s much better than Biden and the mainstream Democratic leadership in order to get the kind of people who are willing to take more, quote unquote, extreme actions like reviving the FDR court expansion plan. And, you know, we need to build up alternative institutions from the grassroots up. I wish those needs were answered but I don’t think there is.
Listen to Scott Harris’ in-depth interview with Ben Burgis (18:29) and see more articles and opinion pieces in the Related Links section of this page.
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