The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
President Biden's and the Democrats' Assault on the Supreme Court and the Rule of Law
Democrats tried to alter unconstitutionally the membership of the Supreme Court; they extorted Facebook into censoring free speech; they issued presidential executive orders unsupported by statute; and they pushed unprecedented prosecutions of Biden's predecessor in office, and his 2024 opponent, in the presidential race.
Democrats are accusing President Trump of undermining judicial independence by not following court judgments in immigration cases. Put aside that, as of yet, it is far from clear that any judicial orders have been violated. Even under the worst assumptions, what Trump is doing to the independence of the federal courts is far less serious than what the Biden-Harris Administration tried to do to the independence of the federal courts.
On April 9, 2021, President Biden created a "Commission" to examine "reforming" the "membership" of the U.S. Supreme Court. This action alone is a more serious threat to judicial independence and to the rule of law than are any of the actions with respect to the courts taken so far by President Trump. Imagine how the Democrats would react if President Trump were faced with a liberal Supreme Court majority and therefore created a Commission to examine "reforming" the "membership" of the Supreme Court. Democrats would say fascism was around the corner.
Among the ideas the Biden Commission seriously considered were imposing 18-year term limits on Supreme Court justices by passing a statute. This is an idea which I once favored for policy reasons, but which I concluded decades ago in a law review article could only be done by a constitutional amendment. I have subsequently concluded that 18-year term limits for Supreme Court justices are also a bad idea, as a matter of policy, because every two-term president would get four Supreme Court appointments, which is almost always enough power to change the jurisprudential balance on the Supreme Court.
Nonetheless, after Joe Biden withdrew his presidential candidacy last summer because of his dismal performance in a nationally televised debate, he gave a speech in Texas endorsing a statute term limiting the Supreme Court justices (a proposal that was understood as calling for legislation, not a constitutional amendment, in part because in the same speech Biden called for a constitutional amendment to overturn the Supreme Court's presidential immunity decision in Trump v. United States (2024) while not calling for a constitutional amendment to change the membership of the Supreme Court). Senator Sheldon Whitehouse's bill to do this provided for eliminating the Senate filibuster as to his 18 year Supreme Court term limits bill. Vice President Kamala Harris, who became the Democratic Party's nominee for president, immediately endorsed Joe Biden's plan for statutory court packing via term limits. As Senator Whitehouse's bill makes clear, the plan was to eliminate the Senate filibuster and ram the term limits, i.e., court packing, through both Houses of a narrowly divided Congress despite the absence of any popular mandate to make such a sweeping change, which would have trashed the rule of law and demolished the independence of our life tenured judiciary.
The size of the Supreme Court has been fixed at nine justices since 1869, 156 years of our 236-year history as a constitutional republic. An exhaustive survey by University of Wisconsin law professor Joshua Braver conclusively demonstrates that there is quite simply no tradition of Supreme Court packing or radical membership changes in American constitutional history. President Biden's actions and speeches after he withdrew from the presidential race, which were endorsed by Kamala Harris, were a flagrant attack on the independence of the U.S. Supreme Court and on the rule of law itself. They were un-American and smacked of the behavior that goes on in banana republics like Argentina, which are devoid of the rule of law.
Under Biden's proposal in July 2024, a new seat on the Supreme Court would be created by statute, and not by a constitutional amendment, for every Supreme Court justice who has served for 18 years or longer at the beginning of a President's first and third year in office. Once a justice was confirmed to that new seat, any justice who had served for 18 years or longer would be barred under Sen. Whitehouse's bill from hearing any case in the appellate jurisdiction of the Supreme Court. Such justices would be unconstitutionally confined to hearing cases only in the original jurisdiction of the Supreme Court or cases in the inferior federal courts, unless they resigned.
The Court would be "packed" because the number of justices would increase beyond the nine who have served since 1869, and justices who have served as "Judges of the supreme Court" would be disqualified from hearing cases in the Supreme Court's appellate jurisdiction. Had Kamala Harris won in November 2024, and had a 50 to 50 Democratic Senate with a Democratic House of Representatives been elected, as could easily have happened, Justice Clarence Thomas and Chief Justice John Roberts would have been forced out of office in the first and third year of Kamala Harris's presidential term.
Apart from the unwisdom and un-Americanism of partisan court-packing, the plan is unconstitutional. Congress's supposed power to term limit or pack the Supreme Court comes from a clause in the Constitution which empowers Congress "To make all Laws which shall be necessary and proper for carrying into execution the judicial Power of the United States." This clause allows Congress to pass the rules of federal procedure. It allows Congress to create new judgeships and to regulate federal court jurisdiction to some degree, just as it allows Congress to create executive offices and cabinet departments and agencies.
But those laws creating judges must be "necessary and proper for carrying into Execution" the judicial power, not "for undermining the judicial power." There are sometimes good grounds for creating new federal judgeships as the caseload of the existing judges gets out of hand, but it is not possible to say with a straight face that the Supreme Court is straining under its caseload, which is roughly a third of where it stood four decades ago. Nor can anyone say with a straight face that Clarence Thomas and John Roberts are suffering from the effects of old age that plague former President Joe Biden.
The Necessary and Proper Clause does not allow Congress and the President to destroy the third co-equal branch of our federal government or to create two Supreme Courts when the Constitution says that there shall be only one. Court packing by statutory term limits is unconstitutional, and if such a bill is ever enacted into law, it will be the duty of the Supreme Court to hold it unconstitutional.
This was a very serious threat to judicial independence and the rule of law. Certainly, nothing President Trump has done so far comes even close.
Statutorily imposed term limits, for their part, would have applied to "Judges of the supreme Court" whose offices are critically created by the Constitution itself, and not by federal statutes. Article II, Section 2 of the Constitution specifically says that: "[The President] shall nominate, and by and with the advice and consent of the Senate, shall appoint … Judges of the Supreme Court ……" "Shall" means "must," and so the Constitution itself creates the offices of "Judges of the supreme Court," and it orders the President to fill those offices. Moreover, Article III of the Constitution specifically adds that "The Judges, both of the supreme and inferior Courts, shall hold their offices during good Behavior."
Congress can term limit the time during which Supreme Court justices serve as inferior court judges, when they sit by designation on the inferior federal courts, because it was Congress, not the Constitution, which gave Supreme Court justices this dual office. Hence, it was constitutional for Congress to eliminate circuit-riding by Supreme Court justices. But Congress cannot legislate as to the office of "Judge of the supreme Court," which the Constitution both creates and grants life tenure to.
Likewise, Congress cannot prevent "Judges of the supreme Court" from hearing cases on the Supreme Court's appellate docket because Article III of the Constitution provides that "The judicial Power of the United States, shall be vested in one supreme Court" and that that power "shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority" as well as to eight other categories of Cases or Controversies.
Congress's only power to regulate the appellate jurisdiction of the Supreme Court is to make good housekeeping rules for how the Supreme Court exercises its appellate jurisdiction. Congress may not create two Supreme Courts: one of which hears critically important appellate jurisdiction cases and the other of which hears only trivial original jurisdiction cases. The opening words of Article III could not be clearer in saying that Congress may create "one" and only "one" Supreme Court.
So, this was the first and most flagrant Biden Administration violation of the rule of law and attack on judicial independence.
Then there was the extortionate threat that the Biden-Harris Administration made in Murthy v. Missouri (2024) to Facebook, Meta, and YouTube that the Administration would bring an antitrust lawsuit against these companies to break them up unless they censored free speech, including truthful information, related to Covid-19, election integrity, and other topics, under the guise of combating misinformation. Justice Alito's dissent describes in chilling detail this threat to free speech and the First Amendment. The only reason the Supreme Court did not reach the merits was an absence of standing to sue. When it comes to extortion to shut down freedom of speech, the Biden-Harris Administration wrote the playbook.
Another Biden Administration attack on the rule of law occurred in 2021, when the Centers for Disease Control and Prevention (CDC) issued a nationwide moratorium on the eviction by landlords of tenants, allegedly to stop the spread of Covid-19. This was as consequential and uncompensated taking of the private property of landlords as that which occurred in the 1952 Steel Seizure Case. In Alabama Ass'n of Realtors v. Department of Health and Human Services (2021), the Supreme Court held that this was an executive branch abuse of power, because it exceeded any statutory power the executive branch had.
Then, on November 5, 2021, OSHA, spurred on once again by President Biden, announced that his administration would be promulgating a vaccination or test mandate for all private companies with 100 or more employees. This order came at a time when many Americans, especially conservatives, were afraid to be vaccinated. A vaccination mandate is a violation of the right to bodily integrity that can only be justified when there are years of proof that the vaccine works and is safe to take. In National Federation of Independent Business v. Department of Labor, OSHA (2022), the Supreme Court ruled, under the Court's Major Questions Doctrine, that OSHA had exceeded its statutory authority in issuing this sweeping, totalitarian mandate on all American workplaces.
Democrats now complain that President Trump is playing fast and loose with statutory text. They may be right on occasion, as with using IEEPA to raise and lower tariff rates (as I have repeatedly argued), but where were these Democrats a few years ago?
Then, yet again in 2021, the Biden Administration tried to use an obscure portion of the Clean Air Act to get the Environmental Protection Agency to promulgate climate change regulations that would have cost trillions of dollars to comply with. This would have bankrupted the country and greatly depressed economic growth. In West Virginia v. EPA (2022), the Supreme Court struck down these rules as being unauthorized by statute, and as raising a Major Question that must be dealt with by Congress.
And in Biden v. Nebraska (2023), the Biden Administration tried to forgive billions of dollars in student loan debt to help itself politically with younger voters even though Biden must have known that he had no statutory authority to do this. The Administration woefully exceeded its statutory authority to forgive such debt, and the Supreme Court struck down the debt forgiveness plan, again under the Major Questions Doctrine. (The Court correctly recognized that the statutory authority was limited to narrow waivers and modifications in the event of "national emergenc[ies]," such as the 9/11 attack that prompted the enactment of the law.)
And finally, on his last full day in office in 2025, President Biden preposterously declared that the Equal Rights Amendment had been validly ratified and was now the 28th Amendment to the Constitution. This attempt to alter the 236 year-old rule of recognition for Article V changes to the Constitution is a form of "constitutional vandalism," and is contrary to precedents such as Dillon v. Gloss (1921) and Illinois v. Ferriero (D.C. Cir. 2023).
This analysis does not even include President Biden's, and the Democratic Party's, four prosecutions of former President Donald Trump on flimsy charges, plus New York State's outrageous $450 million civil suit against President Trump. Until the Biden Administration, no President had ever prosecuted his predecessor in office for anything. Joe Biden tore up that rule and threw the whole weight of the Department of Justice and the FBI against President Trump who he was running against in the 2024 presidential election. The States of New York and Georgia piled on. As former Judge, and now Stanford law professor, Michael McConnell wrote in the Wall Street Journal, the New York State criminal case, in particular, was a sham and a travesty of justice.
The only charge brought against President Trump that was even plausible was mishandling of classified documents, but former Secretary of State Hilary Clinton had had a private email server that was unsecured at her private home and that could have been easily hacked by the Russians that had classified documents on it. Since Clinton was not prosecuted for this gross breach of mishandling classified information, then-former President Trump should not have been prosecuted for misuse of classified information either. To make matters worse, Attorney General Merrick Garland even appointed an unconstitutional Special Prosecutor to go after Trump, as Judge Aileen Cannon of the District Court for the Southern District of Florida correctly held in the summer of 2024.
No President has posed a bigger threat to judicial independence, to the freedom of speech, to liberty (by woefully misreading federal statutes), or to constitutional norms (like not prosecuting your predecessor in office) than President Biden did. I have spoken out against what I see as the improper actions of the Trump Administration, such as its treatment of Columbia University, its attempt to rescind birthright citizenship, and its exceeding its statutory authority as to tariffs; but I think the Biden Administration's record on following the rule of law and respecting judicial independence is dreadful. To those who fear that the United States is becoming an authoritarian state, thank God that the Biden-Harris Administration is no longer in office.
That being said, I very strongly disapprove of the Trump Administration's behavior toward law firms, its threats to revoke Harvard's tax-exempt status, and its attempts to coerce university speech and mandate curricula. I expect to discuss those lengthy subjects in a later post.
