The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Supreme Court at the 2023 State of the Union
President Biden goes off script on abortion.
Tonight President Biden gave the State of the Union address. In attendance were Chief Justice Roberts, Justice Kagan, Justice Kavanaugh, Justice Barrett, and Justice Jackson. Justices Kennedy and Breyer were also in attendance. When they entered, there was a standing ovation on both sides of the aisle.
Here comes SCOTUS @ the SOTU: pic.twitter.com/qohtTg2W7x
— Witches Truth Post ???? (@witchestruth) February 8, 2023
The President's address included only one bit about the Supreme Court. Here were his prepared remarks:
Congress must restore the right the Supreme Court took away last year and codify Roe v. Wade to protect every woman's constitutional right to choose. The Vice President and I are doing everything we can to protect access to reproductive health care and safeguard patient privacy. But already, more than a dozen states are enforcing extreme abortion bans. Make no mistake; if Congress passes a national abortion ban, I will veto it.
But Biden issued a watered-down version of these already-tepid remarks:
Congress must restore the right that was taken away in Roe v. Wade and protect Roe v. Wade [applause] give every woman a [?] right. The Vice President and I are doing everything to protect access to reproduction health care and safeguard patient safety. But already, more than a dozen states are enforcing extreme abortion bans. Make no mistake about it; if Congress passes a national abortion ban, I will veto it.
Biden calls on Congress to codify Roe v. Wade, and condemns states that are enforcing extreme abortion bans.
"Make no mistake; if Congress passes a national abortion ban, I will veto it." pic.twitter.com/IJcYUm2jgu
— MSNBC (@MSNBC) February 8, 2023
He didn't say the Supreme Court took away the right. He didn't say Congress should codify Roe v. Wade. And he didn't even clearly say constitutional right to choose. He only threatened to veto a bill that will never get passed. Alas, the camera did not cut to the Justices while Biden delivered these remarks, so there was no reaction shot. Biden did not do a reprise of Obama's 2010 State of the Union.
Biden did make a joke about the Chief Justice providing a court order so he can attend the Super Bowl.
"By the way, Chief Justice, I may need a court order. She gets to the game next week, I have to stay home. We have to work something out here" -- Biden pic.twitter.com/3ykNJZCS0b
— Aaron Rupar (@atrupar) February 8, 2023
There was zero mention of "Court reform." No mention of his much-vaunted Supreme Court commission. And no mention of his new Supreme Court appointee, Ketanji Brown Jackson. Or as he said it recently, Ketanji Drown Jackson.
BIDEN: "Those are the words of Kejan— Kejan— Ketanji Drown Jackson, our Supreme Court justice." pic.twitter.com/Fbhk0pffsY
— RNC Research (@RNCResearch) January 15, 2023
At 2:26:30 (on the C-SPAN feed), Biden makes his way back to the Justices. He says "Sorry you guys had to sit through that. I apologize." Justice Kagan laughs out loud and the Chief smiles.
"Sorry you guys had to sit there," Biden jokes to Supreme Court Justice Elena Kagan before launching into a story with retired Justices Breyer and Kennedy about the Supreme Court nomination fight in 1987 + his private meeting with Reagan that helped lead to Kennedy's selection. pic.twitter.com/Aa4Y6R1L3G
— Dan Diamond (@ddiamond) February 8, 2023
So much for using the bully pulpit to go after the Supreme Court.
Next, Biden asks Justice Breyer "are you doing okay." Breyer says nods his head, "yes." Then Biden walks over to Justice Kennedy, and brings Justice Breyer back into the conversation. He then recounts a lengthy story about Kennedy's nomination to the Supreme Court in 1987. Biden recounted how he recommended then-Judge Kennedy to President Reagan.
On balance, this usually-staid exercise was actually refreshing. It was nice to see Justices Kennedy and Breyer back in their element. And even though we are repeatedly told that the Supreme Court is an existential threat to democracy, Republicans and Democrats alike cheered for the Justices (including two members of the Dobbs majority), and the President joked around with the Chief. Things are not so bad.