Biden Won't Pack the Supreme Court, and It's Killing Democracy | Opinion

Well, it was another banner week from the six unelected zealots who apparently make all of America's public policy decisions. Yet even after the hard-right supermajority on the Supreme Court torched affirmative action, greenlit all manner of ugly discrimination against LGBTQ Americans and yanked up to $20,000 from millions of indebted borrowers, President Biden and his allies still can't bring themselves to threaten or even contemplate serious reform to the judicial branch. Instead, they seem content to watch our very own Guardian Council wreak total havoc on American society.

The decision in the student loans case, Biden v. Nebraska, was particularly egregious. The Higher Education Relief Opportunities for Students (HEROES) Act of 2003 clearly grants the executive branch the right to forgive student loans. Section 2a states that the secretary of education "may waive or modify any statutory or regulatory provision applicable to the student financial assistance programs under title IV of the Act as the Secretary deems necessary in connection with a war or other military operation or national emergency...."

Apparently, plain language only rules the day when it was composed by candlelit slaveholders a hundred years before the invention of the phonograph. The 6-3 majority, in a particularly tendentious line of reasoning, held that "However broad the meaning of "waive or modify," that language cannot authorize the kind of exhaustive rewriting of the statute that has taken place here." Oh, ok! The conservative supermajority then blithely substituted its own preferences for the interpretation of an unambiguous federal statute.

The Roberts Court has always been more than willing to do whatever is necessary to boost Republican political fortunes. The only exceptions have been achieving long-sought conservative policy goals that might nevertheless have short-term political fallout for the GOP, like overturning Roe v. Wade, or the rejection earlier this week of the preposterous Independent State Legislature Theory, which might have precipitated such a grave constitutional crisis that the costs would have outweighed the benefits.

In this case, the court has taken away one of the only things Biden has actually delivered for young voters, a core Democratic voting bloc, which will head into the 2024 election demoralized and likely blaming Biden rather than the Supreme Court. It is really a difficult political blow to Democrats, who now have to go back to millions of borrowers who thought part, or all of their loans were being forgiven and explain that in fact, they are not. In some ways, it is worse than if they had never tried to do any forgiveness at all.

But spiking the Biden administration's loan forgiveness program served another important purpose for these robed cretins: It landed another blow against "the administrative state" by restricting the power of executive agencies to act without explicit authorization from Congress. Paralyzing and then shrinking the federal government has been a longstanding policy goal of the right-wing judicial movement, and they finally have that Valhalla within reach. They will likely not stop until most of the New Deal and Great Society achievements of modern American society have been reversed.

Yet even after saying that "this is not a normal court" in response to the affirmative action decision, our president then went on MSNBC to say that he won't even entertain the idea of expanding the court, which he says could "politicize it forever." Seeming very tired, he went on, "Maybe it's just the optimist in me—I think that some of the court are beginning to realize their legitimacy is being questioned, in ways it hadn't been questioned in the past." Well, this realization certainly wasn't apparent on Friday morning! The only thing that the SCOTUS Six have realized is that they can literally do whatever they want and there will never be any consequences for them whatsoever.

And if this is indeed "not a normal court" then it is even more mind-boggling that Biden won't consider doing anything other than meekly submitting to each fresh outrage. Yes, Democrats do not truly hold the Senate, making any court-packing threat hollow for now. But Chuck Schumer's remaining squishes are never going to get on board if the national party leader keeps saying he's against radical measures to address this rogue Supreme Court and would prefer instead to basically wait it out for some of them to die or come to their senses. That persuasive work needs to happen now, not the next time Democrats have one of their elusive governing trifectas.

But it's not just about strong-arming recalcitrant Democrats. Has no one in the White House heard of a credible threat? Despite all the court-packing chatter from academics, activists and a handful of elected Democrats, Roberts and his allies will never take the challenge to their institution seriously if it is not coming straight from the top. And why should they? All the Biden administration has done about the problem of the Supreme Court in 30 months is put together and then ignore a toothless reform commission. Congressional leaders issue terse statements but are too terrified of the political blowback to mount a real frontal assault against the court.

With or without Biden, court expansion must become a litmus test for any Democrat who wants to pursue federal office. The alternative is to spend the next 15 Junes learning which part of American public life has been needlessly upended by corrupt, originalist fanatics, and which new ways the Supreme Court has made it easier for Republicans to gain and wield power.

David Faris is an Associate Professor of Political Science at Roosevelt University and the author of It's Time to Fight Dirty: How Democrats Can Build a Lasting Majority in American Politics. His writing has appeared in The Week, The Washington Post, The New Republic, Washington Monthly and more. You can find him on Twitter @davidmfaris.

The views expressed in this article are the writer's own.