A Novel Theory Of Joe Biden's Political Woes

The Supreme Court's latest threat gives Biden a choice: silently absorb another setback, or fight

(Photo by Chip Somodevilla/Getty Images)

We know to a certainty that the Supreme Court’s decision to overturn Roe v. Wade has helped Democrats politically. The effect has run through different channels state by state. In some elections, voters have defeated Republicans to prevent them from consolidating enough power to ban abortion. In others, Republicans have already banned abortion, or allowed ancient, pre-Roe abortion bans to snap back into effect, and voters have elected Democrats to restore abortion rights. But in a two-party, zero-sum system, the effect is the same. Anti-GOP backlash and pro-Democratic enthusiasm are both good for Democrats. 

It hasn’t really been good for Joe Biden though. If you’re an optimist you can object to that characterization or chalk it up to circumstance: He hasn’t faced re-election yet, so we don’t know if it’s helped or hurt or been a non-factor. But insofar as we can frequently identify voter backlash in horserace and approval polls, we know that Biden is faring worse now than he was before Dobbs and Donald Trump, the man responsible for Dobbs, is faring better. 

Biden’s abysmal polling is multifaceted, and to some extent mysterious. But it’s both anecdotally and theoretically easy to understand why, for now at least, Dobbs has been a loser for him. On the far end of the low-information voter spectrum, Joe Biden was president when the right to abortion disappeared, and some of those voters thus hold him responsible. On the opposite end of the high-information spectrum, a similar, but more sophisticated analysis has gained purchase: Tuned-in progressives know that Trump-appointed Republican justices provided the pivotal votes to eliminate the right to abortion—but they also know that the Supreme Court’s authority is not divine, and that the president is not completely powerless. Some of them are upset that Biden has not been a more vocal abortion-rights advocate or a more creative administrator of federal law, others wish he’d be more antagonistic to the court itself, perhaps even throw his support behind adding seats to the bench. 

Biden could credibly defend himself from these critics. He might reasonably worry that if he became the face of the pro-choice movement his unpopularity would rub off on abortion rights, not the other way around. He might believe a fair reading of the law ties his hands, or that (for instance) allowing abortions on federal land would expose the federal workers who perform them to legal consequences in ban states. He might think antagonizing Republican justices will motivate them to retaliate against other aspects of the liberal agenda, and that embracing the court-reform movement might trigger a right-wing backlash that dwarfs its galvanizing effect among progressives. 

He’s in a shitty spot, no doubt. But I think we can generalize it: Political setbacks outside of his control, including through the opposition’s corrupt abuse of power, are extra demoralizing when he appears to have no response. He should thus find new ways to speak and act in response to events like Supreme Court power grabs, in order to reassure his supporters that progress is still possible. 

COMPLIMENTS TO THE CHEV

Why do I say generalizable? Let’s consult the record. 

Biden ended the U.S. war in Afghanistan, fulfilling a popular campaign promise over the reservations of his military advisers. But Taliban fighters quickly filled the power vacuum, creating a mad-dash for the exits. The actual withdrawal was relatively bloodless (wars don’t typically end in orderly fashion) but it was also harrowing. American news media, prodded by hawkish elites in Washington’s foreign policy blob, covered it as a bungle, and Biden suffered for it. His polling has really never recovered. 

Biden’s full-employment policies have made the American economy the envy of the post-pandemic world, but firing the global trade system back up after a long period of quiescence created supply bottlenecks, which begat inflation that U.S. news media (and Republicans) have framed as a domestic policy failure, rather than an international challenge that Biden and the U.S. have met successfully. It’s naive enough to make you wonder what headlines would say if an asteroid struck Michigan: “America Devastated By Natural Disaster”? Or: “Swing State Ravaged Under Biden Presidency”...

Biden’s somnambulant support for the Netanyahu government in Israel, as Bibi chucks sand in his face, tells a similar story, though without a redeeming backdrop like ending the war in Afghanistan or rescuing the American economy.

But we can confine this dynamic to the courts alone.

Add up everything Biden’s done to alleviate the student-debt burden, and it sums to hundreds of billions of dollars. But all of it has been rolled out piecemeal. His standing with young voters improved briefly but significantly only once: when he announced a big, comprehensive student-loan forgiveness program in mid 2022. But within weeks, before anyone’s debt had actually been forgiven, a right-wing judge enjoined the program; several months later, the six Republican-appointed Supreme Court justices threw it out entirely. In that interregnum his standing with youth voters fell beneath its previous lows. 

But the biggest reason he needs new, better ways to respond to these interventions may not actually be to mitigate the damage from Dobbs and Biden v. Nebraska. It’s that there’s more to come. 

On Wednesday, the Supreme Court heard arguments in a case that will allow right-wing justices to paralyze the administrative state and claim immense regulatory authority for themselves. The case is nominally about federal over-fishing rules, but it challenges the validity of “Chevron deference.” 

Under that doctrine, when the text of law is ambiguous or broadly written, the judiciary must defer to the executive branch so long as the executive branch interprets the law reasonably. Sometimes the law clearly authorizes the executive branch to take certain specific actions. Other times it clearly does not. In the inbetween, Chevron vests power in the subject-matter experts of the executive branch who make and implement policy, and report to elected officials, rather than requiring recursive refinement by Congress, or leaving it up to unelected judges.

The right-wing justices of the Supreme Court, led by Neil Gorsuch, are poised to eliminate this discretion. Gorsuch has been gunning for the administrative state, and Chevron in particular, his whole career. He is apparently motivated by animus over his mother’s tumultuous, partisan tenure as EPA director in the 1980s, when Chevron deference became doctrine in a decision that overrode one of her own acts of discretion. It’s such a widely understood grudge that the lawyer trying to reverse the underlying precedent cited her role in it at oral arguments. And the four most right-wing justices are so giddy with excitement about delivering a “convulsive shock” to the federal regulatory apparatus that they laughed about it during this week’s proceedings. 

With the case now submitted, the Roberts court could, in the middle of the election, steal powers Biden needs to regulate polluters, pharmaceutical companies, and other corporate interests. If he manages to win a second term, the court could easily weaken or dismantle the National Labor Relations Board in his second term. 

He may not be able to stop them, but he and his advisers should have rhetorical and administrative plans in place for when the decisions come down, so they don’t play out as unreciprocated punches to the gut.  Ideally, the justices come to regret their overreach. 

JOEY BUFFETED

What that means as a practical matter will vary by issue. The administration is still “continuing to pursue an alternative path to deliver student debt relief to as many borrowers as possible as quickly as possible,” Biden said recently, confirming again that he will announce a new loan-forgiveness plan under different legislative authority before too long. That’s good. Some words of warning about the Supreme Court would be good, too.

The specific issue of overfishing admittedly doesn’t demand his direct attention, but the end of Chevron deference would threaten all kinds of protections. Even if I were a lawyer, it’d take a lifetime to compile a complete list along with workarounds in every case. But Biden’s lawyers should be doing that, and preparing the administration to invoke the outer limits of the president’s authority in response. His emergency powers, his powers under the Takings Clause—anything that might restore a check on corporate abuses that the Supreme Court will surely green light. 

He and his surrogates should also just talk a tougher game with the court in general. Biden currently limits himself, reluctantly, to describing the court as ‘not normal.’ But it is much worse than that: It’s illegitimate, partisan, corrupt, and drunk with power.

Understanding this malignancy, Biden might try anticipating its abuses and warning the public about them in advance. He can promise, without endorsing a particular course of action, that there will be a reckoning for the theft of the Supreme Court. He and other Democrats could also go to bat for faithful judges, like Tanya Chutkan, who find themselves under terrorist threat as they preside over Donald Trump’s civil and criminal cases. They might start to ask why the DC Circuit Court of Appeals hasn’t weighed in on Trump’s dictatorial immunity claim yet—are any of the judges on that panel intentionally helping him delay his January 6 trial? (Note: if I’ve jinxed myself, and that opinion lands today, I’ll happily take the L.)

These are just a handful of ideas; there are surely more and better ones. But he should field them all with a singular goal in mind: To assure the majority of Americans that when their leaders are buffeted by events outside of their control, they will respond with vigor. Not because they love to fight, necessarily—Joe Biden doesn’t—but to vindicate the idea that the people are still masters of the country’s destiny.