Some can imagine how much giving up running for office cost Joe Biden. He who clung so tightly to this Oval Office. And who, before being installed there, was so long sidelined from the race that could have led him there. So, he intends to take advantage of every moment that separates him from his departure from the White House. Six months during which he could complete “the honor of his life”, as he puts it, with a final major reform. Why not, for example, tackle the old sea serpent that would constitute an overhaul of the sacrosanct Supreme Court?
The initiative was unveiled on Monday, July 29, on the sidelines of a gathering commemorating the Civil Rights Act, in Austin at the Lyndon B. Johnson Library. This same president who, like him, has given up running for the supreme office. Under the Texan sun, precautions are in order three weeks before the great Democratic Congress: “I have great respect for our institutions and for the separation of powers provided for in our Constitution.” And as is often the case, they are followed by a “but”: “But what is happening now is not consistent with this doctrine of separation of powers,” the Democratic president poses. With, in the background, a double reference.
First, the corruption revelations that have tarnished the institution’s image, concerning several judges who allegedly accepted vacations and gifts from wealthy donors close to conservative circles. In April 2023, the online investigative magazine ProPublica had notably lifted the veil on the list of benefits received by Justice Clarence Thomas in the context of his functions. A sum which amounts to tens of millions of dollars. Then, a way for Joe Biden to give a stab to one of the last decisions of the Supreme Court.
The expansion of presidential immunity
In early July, the Chief Justice of the US Supreme Court, John Roberts, sparked controversy by departing from the institutional neutrality he had displayed since taking office in 2005 under President George W. Bush. This is how the decision rendered by the conservative majority was interpreted six months after Donald Trump’s referral on 12 February, claiming presidential immunity. The goal for the former president? To avoid the federal trial scheduled for 4 March, which was to judge his attempted coup d’état that led to the storming of the Capitol on 6 January 2021.
If the Court, by limiting itself to constitutional acts, did not grant full and complete immunity, the verdict is nonetheless a gift for Donald Trump, who thus sees the specter of a trial in this case recede. And for good reason, in his decision, the conservative president John Roberts asserts “the nature of presidential power” which grants a former president “at a minimum a presumed immunity against prosecution for all his official acts.” A decision justified, among other things, by the fear of an undermining of the separation of powers.
For many legal experts, however, the Court’s decision is not based on any legal basis. John Roberts and the conservative majority on the Supreme Court have only given Donald Trump “a significant victory that could reverse the balance of power in his legal battles,” summarizes CNN. And while liberal Justice Ketanji Brown Jackson accuses the conservative majority of sowing “the seeds of absolute power” for the tenants of the White House, Joe Biden castigates “a dangerous precedent.”
A reform doomed to failure
Thus, the American head of state pleaded on Monday for the adoption of a constitutional amendment removing the president’s immunity “for crimes committed in the exercise of his functions”. Problem: any constitutional revision requires the approval of two-thirds of Congress and three-quarters of the states. A quorum that the Democrats do not have. Barely presented, Joe Biden’s reform, which also includes limiting the number of terms of Supreme Court judges, is thus already labeled “stillborn”. Not surprising, however, given that the institution is perceived as untouchable in the United States.
Since the 1930s, no other president after Franklin Delano Roosevelt has dared to touch the Supreme Court. Like Joe Biden, the instigator of the New Deal had inherited, when he came to power in January 1933, a court dominated by conservatives. Thus, to avoid seeing his social reforms rejected by the Court, he had proposed appointing a new judge on each of a member’s 70th birthdays. “But the press and leading jurists stepped up to the plate, denouncing a manipulation of institutions for political ends, and thus causing the project to fail,” Françoise Coste, professor at the University of Toulouse Jean Jaurès and specialist in the United States, told L’Express.
A maneuver that could turn in Trump’s favor
But then, why venture into a reform that has no chance of seeing the light of day six months before the supreme election? To channel the Democratic base, quite simply. “A few weeks before the big congress, Joe Biden was obliged to respond to the decision to extend presidential immunity that made the Court the appendage of Trump’s presidential campaign,” deciphers Françoise Coste. Even more so at a time when decisions with a strong political tinge are coming one after the other.
“An unprecedented shift already seemed to have taken place with the overturning of the Roe vs. Wade ruling on abortion in 2022,” recalls the specialist. But with the decision to extend the immunity of the “MAGA” (for Make America Great Again, campaign slogan used by Ronald Reagan during the 1980 presidential campaign and taken up by Donald Trump), “the Supreme Court has reached a point of no return”, believes Françoise Coste, particularly with John Roberts, “who is completely letting loose and no longer bothers to hide his penchant for the hard right”. This same President of the Court who nevertheless hammered home in 2018: “We do not have pro-Obama or pro-Trump judges, pro-Bush or pro-Clinton judges.”
In addition, throwing a spanner in the works by putting this reform on the table could be a way for the Democrat to shed light on the abuses of conservative judges in the middle of a presidential campaign. The proposal was immediately supported by Kamala Harris, who was endorsed by Joe Biden immediately after he withdrew from the presidential race next November. Be careful, however, not to agitate it too much, at the risk of serving the Republican candidate yet another argument on a silver platter in the service of his populist rhetoric.