These Are Not Examples of Biden Politicizing the Supreme Court, According to the Media

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July 20, 2023

"Biden Criticizes Supreme Court Rulings, but Not the Court," reads a recent New York Times headline. It's a narrative that the Times and other media outlets have been pushing for years.

There's just one problem: President Joe Biden’s actual words.

Biden's reputation as a defender of the conservative-majority Supreme Court dates back to his "return to normalcy" presidential campaign in 2020 when he defied angry progressives by stopping short of promising to "pack" the bench. Never mind that Biden called the Court "out of whack" and suggested he would consider "a number of alternatives that ... go well beyond packing."

"Surprise! Joe Biden is a Moderate Institutionalist!" blared CNN following Biden's election.

The mainstream media have stubbornly stuck with its institutionalist Joe caricature even as President Biden has repeatedly railed against the Supreme Court in highly partisan terms. Coverage has often downplayed—or tried to explain away—Biden’s attacks on the judges as "extreme," "out of control," and an ally of Republican extremists bent on taking away "our freedoms."

Typical of the trend was a CBS News report last month on Biden's response to the Court restricting race-based affirmative action in university admissions: "Biden Says Supreme Court's Affirmative Action Decision Can't Be 'The Last Word'":

President Biden on Thursday expressed his disappointment with the Supreme Court's ruling against affirmative action in college admissions, insisting the country "cannot let this decision be the last word."

"While the court can render a decision, it cannot change what America stands for," he said from the White House.

Only in the final line did CBS News note how Biden had launched a daylong assault on the Supreme Court itself by declaring, "This is not a normal Court."

In June 2022, after the Supreme Court overturned federal abortion rights, the Washington Post similarly characterized Biden as simply focused on the decision. "Biden Sharply Ramps Up His Response to ‘Destabilizing’ Abortion Ruling," was the Post’s headline.

The report made no mention of Biden's broader denunciations: "Make no mistake: This decision is the culmination of a deliberate effort over decades to upset the balance of our law. It's a realization of an extreme ideology and a tragic error by the Supreme Court, in my view."

"With this decision, the conservative majority of the Supreme Court shows how extreme it is, how far removed they are from the majority of this country," Biden added. "They have made the United States an outlier among developed nations in the world. But this decision must not be the final word."

A few days later, the Times ran the bland headline, "Under Pressure, Biden Issues Executive Order on Abortion."

Biden had suggested the Supreme Court was part of a right-wing authoritarian plot: "So, what we're witnessing wasn't a constitutional judgment. It was an exercise in raw political power. ... We cannot allow an out of control Supreme Court, working in conjunction with extremist elements of the Republican Party, to take away freedoms and our personal autonomy."

When Biden again took direct aim at the Supreme Court ahead of last year's midterm elections, there was no new ruling to cover for the broadside. As reported by the Post: "Biden says Supreme Court ‘more of an advocacy group’ than ‘evenhanded’":

President Biden is stepping up his criticism of the Supreme Court, calling it "more of an advocacy group" than "evenhanded" after the court struck down the constitutional right to an abortion.

Still, the Post noted the White House's claims that Biden draws a respectful distinction between the Court and its decisions.

Speaking Wednesday to reporters traveling with Biden on Air Force One, White House press secretary Karine Jean-Pierre said Biden maintains his respect for the "institution of the court" but will not be silent when he disagrees with its rulings, including on abortion.

Biden had characterized the Court as an anti-democratic political actor: "The American people are, for the first time in God knows how long, worried about whether we can keep our democracy. I view this—this off-year election as one of the most important elections that I've been engaged in, because a lot can change, because the institutions have changed. The Supreme Court is more of an advocacy group these days than it is … evenhanded."

Of course, the media have not always struck to the "Joe Biden is a Moderate Institutionalist!" script. Times White House correspondent Michael Shear initially described the president calling the Supreme Court not "normal" as "an extraordinarily critical assessment of another branch of government shortly after the court’s conservative majority ended nearly a half-century of affirmative action in college admissions."

But last week, Shear decided that Biden has actually never attacked the Supreme Court. Under the headline "Biden Criticizes Supreme Court Rulings, but Not the Court," Shear argued: "Mr. Biden has resisted a full-throated attack on the Supreme Court itself or the individual justices. He has denounced the Court's individual decisions, but has said he does not want to politicize the third branch of American democracy and risk undermining its authority forever."

Shortly after Biden condemned the Court as abnormal, Shear explained, he went on MSNBC and "made it very clear what he meant—and what he didn’t. He did not want to overly politicize the Court. ... He was just focused on decisions by the justices that he disagrees with, like their far-reaching rejection of abortion rights."

Shear concluded with a Biden quotation from the MSNBC interview, as though it proved the president’s reverence for the Supreme Court: "What I meant by that is [the Court's] done more to unravel basic rights and basic decisions than any Court in recent history. And that’s what I meant by ‘not normal.’"