A War President: Here's the Speech we need to hear from President Biden
Alexander Hamilton saw a partisan Court was a mortal threat, we should too.
The recent Supreme Court session and the revelations of the Select Committee on the January 6th Attack on the Capitol make clear that our democracy is under assault at the highest levels.
President Biden, the Democrats, and even some Republicans now see this threat. But the response is not sufficient. We need a War President to meet the moment.
Here’s the speech I want to hear from President Biden:
From the Oval Office
Good afternoon-
I was elected President by a large majority of Americans. After Congress withstood an attack planned and launched to stop it from certifying that election, I swore an oath to preserve and protect the Constitution of the United States from all enemies, foreign and domestic.
As President, I fought for voting rights and the integrity of our elections, only to see the Supreme Court gut the Voting Rights Act and the Senate fail to break a Republican filibuster that would have allowed us to pass laws restoring what the Court had taken away. Meanwhile, the big lie continues to be spread by unrepentant and unprincipled officials. Some of these are people who swore the same oath I did, and for whom that oath may been their first official lie.
Now we are confronted with a rogue and illegitimate Supreme Court. I do not say that lightly.
The Founders wanted the Court to reflect American values yet remain insulated from the passions of American politics. That’s why they established Presidential nomination of Justices and life tenure. But the system has been rigged. It has been more than thirty years since a Republican Presidential candidate won the majority of the popular vote. Yet since then, Republican Presidents have appointed two thirds of the Court. Senate Republicans refused confirmation of Barack Obama’s appointment to the Court because an election was coming then rushed Donald Trump’s appointment to the Court because an election was coming. Americans know this isn’t fair.
My whole life has been about bi-partisan work. I am not speaking to you today because of a liberal- conservative policy dispute. I am here because an illegitimate Supreme Court forces us again to ask whether a government of the people, by the people, and for the people can long endure.
That the Court is now partisan rather than principled, a captive of a political faction, you should have no doubt. Republicans have made no secret of it. They have campaigned for decades on a promise to appoint judges who will do their bidding. Now we see the result: a packed and partisan Supreme Court, and an Article III Constitutional crisis that has no precedent in our history.
The Founders did not all believe the Supreme Court had the right to determine whether the acts of Congress were constitutional. Back then, many thought the Congress, being closer to the people and a co-equal branch of government should determine on its own what was and was not allowed. Then, in the case of Marbury v. Madison, the Court gave itself the right to say what was and was not constitutional. The decision was sound, but only because it rested on a foundation of judicial restraint and deference to the views of the elected branches of government.
Today’s Court has destroyed that foundation. In place of restraint, the Court now issues sweeping rulings that are nothing but partisan. What do I mean by that? When Roe was decided, the Court split 7-2. Justice White, appointed by President Kennedy, a Democrat, was one of the dissenters. The Roe decision was a careful one- it did not say abortion was always legal. It acknowledged that states have the right to regulate abortion in some instances. Thus, the freedom the case won for women was limited. In a follow-up case in 1992, the Court said that the state could not impose an undue burden on women before the viability of the fetus outside the womb. Like it or not, these earlier, careful, decisions fully considered and balanced the interests at law.
Compare that to the recent decision in Dobbs overturning Roe. This was an expansive partisan decision with all the Republican appointed Justices voting to overturn precedent. There was no acknowledgment that woman have any rights that matter. There was no attempt to balance competing rights. Instead, acting more like politicians than judges, the partisan and compromised Justices vilified their opposition and made no space for dissenting views. Most Americans know the recent decision is wrong. I happen to agree. But being wrong in this case is not a threat to our democracy. A partisan and maximalist court is.
You see this in the Court’s series of appalling and dangerous decisions on voting rights. In one, Justice Roberts simply opined, against all evidence, that racial prejudice was no longer a thing in America. He said that states would not enact racially gerrymandered districts if they were allowed to do so. We now know that he was wrong. The day after his Shelby Decision, several states rushed to change voting boundaries in ways that would have been illegal and unthinkable just days earlier.
Then followed the Rucho decision which forbade any federal court from hearing cases where partisan gerrymandering takes place. Today there is no remedy at all in the federal courts to the partisan map drawing that is poisoning the democracy in state after state. The same Court that claims to know that there is no longer racism in politics finds it impossible to tell if there is partisanship. This is not jurisprudence, it’s politics.
There are other cases I could talk about. Citizens United unleashed a fortune in dark money into American politics because the Court opined that floods of unaccountable cash would not lead to bribery or even the appearance of it. This ruling overturned laws that legislators of both parties enacted to protect their ability to work for the American people. If there ever was an area where deference to the Legislative Branch was obvious it would be this one. Yet this Court sets itself above the other branches of Government.
The Court is now taking aim at the Executive Branch. Before leaving town, the Court severely constrained the EPA’s ability to regulate emissions from power plants. And they left town promising to come back to consider whether it is legal for the electoral college to be decided by state legislatures without regard to the outcome of elections.
They justify their partisan attacks on democratic norms and the other branches of government by talking about a relatively new way of reading the Constitution, what they call “Originalism.” They tell us “Originalism” is the legal doctrine that the only thing that matters when interpreting the Constitution is what the authors thought at the time. As a judicial philosophy, it does not hold up. But, let’s face it, they do not even believe it. If they did, the Court would have hired historians to help them understand what the authors of the Constitution were thinking, and what the people living in those eras thought they were ratifying. But this Court has never hired even a single historian. Their so-called originalism is just a fig leaf concealing their partisanship.
My friends, this is serious.
The framers of the Constitution would have understood this moment as a mortal threat to the democracy they were trying to create.
Don’t take my word for it. In arguing for judicial independence Alexander Hamilton wrote:
there is no liberty, if the power of judging be not separated from the legislative and executive powers… as liberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments.
A maximalist Court, bent on expanding its power over the other branches, or worse, in league with a faction that controls one of the branches, is as certain a path to tyranny today as it was in in the 1790s.
And here’s the thing. I swore an oath to protect the constitution from this kind of threat, from all threats foreign and domestic. So today I come before you as a War President.
This is not a role that I sought, as you know. My whole career has been about bi-partisan work. But the ongoing effort to overturn our democracy, an effort that includes the big lie, the misuse of our courts, and the corruption of the Supreme Court has created a risk to our democracy that no President sworn to preserve and protect the Constitution of the United States can ignore.
An illegitimate Supreme Court is a grave danger to us all. So today I am taking the following steps to restore our democracy:
First, I direct the EPA to ignore the Court’s decision in West Virginia v. the EPA. To the EPA: continue to enforce rules that will bring down our carbon pollution. Continue to protect our citizens.
Second, I direct my entire Cabinet to examine ways they can help women who need reproductive health care early in pregnancy. No matter what state a person lives in, in America everyone should have access to care1.
Third, I direct the Justice Department to refrain from taking legal action against any state or local government that decides to regulate firearms to protect their citizens. Americans are tired of the carnage. The partisan and indefensible rulings of the Court since the Heller decision should be seen for what they are- payoffs to the NRA for supporting Republicans rather than sound and independent jurisprudence.
These three steps are meant to nullify some of the ill effects of this illegitimate Court. They are also meant to push back against the ongoing effort of this Court and other members of its faction in the Legislature who would continue to use the pretense of Judicial Legitimacy to undermine voting rights and weaken the democracy itself.
Fourth, I call on the Unites States Congress to reform the Court. My Commission on the Supreme Court examined many possible reforms in detail. I personally would like to see four new seats and term limits so that every President gets to make an appointment during a term. We all swore the same oath. I do not recall that oath containing the word “filibuster.” There is no excuse for the legislative process not to move forward quickly.
And, let’s be clear, if I get four appointments to the Supreme Court I will not look for left learning version of Justices Alito, Thomas, Kavanaugh, and Gorsuch. Instead, with fidelity to the oath I swore, I will appoint Justices who would be independent- that’s what presidents of both parties did for many, many years.
Fifth, I want to remind everyone that the Justice Department has my full support to follow the facts and the law wherever it takes them, and as quickly as they can get there, to quash other related threats to our democracy- such as the ones uncovered by the Congressional hearings into the violent attack on January 6th.
Finally, I ask all Americans to read Federalist 78, where Alexander Hamilton talks about the danger of a captured court. Turn off the pundits and educate yourselves about the dangers our democracy faces. Do not listen to lies and conspiracy theories. Propagandists use them to make the truth itself look like a lie or a conspiracy. That way lies the end of our Republic.
We have an election coming. I am asking you to set aside your policy differences, as important as they are, and come together to save our democracy. Elect members who will restore the legitimacy of the Supreme Court and protect our democracy.
To those of you who served with me in Senate- I hope you do not mistake me. While I want nothing more than bipartisanship to strengthen our democracy, I will not tolerate; No, I will fight, any effort to weaken it.
To those engaged in the subversion of our democracy, know this- America has long ignored your threat, self-assured that our democracy can withstand any attack. No more. The good people of America are now engaged in this fight, and we will not rest until the danger has passed and you are in the ash heap of history with all the other would-be tyrants.
I am not a warrior by nature. But I am a man of my word. And I took an oath.