The NPR Politics Podcast - Can Joe Biden End Presidential Immunity And Change SCOTUS?

Episode Date: July 31, 2024

President Biden's plan to fix the Supreme Court is going nowhere quickly, but the ideas he is proposing seem likely to stick around for awhile.This episode: national political correspondent Sarah McCammon, political correspondent Susan Davis, and senior national political correspondent Mara Liasson.The podcast is produced by Casey Morell and Kelli Wessinger. Our intern is Bria Suggs. Our editor is Eric McDaniel. Our executive producer is Muthoni Muturi. Listen to every episode of the NPR Politics Podcast sponsor-free, unlock access to bonus episodes with more from the NPR Politics team, and support public media when you sign up for The NPR Politics Podcast+ at plus.npr.org/politics.Learn more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

Hi, this is Tegan and Rosalie from Denver, Colorado. But right now we're in Des Moines, Iowa on day eight of a 10-day road trip with our 16-month-old. We just got done visiting friends in Madison, family in Milwaukee, and some other friends in Chicago. And we're on the final leg home. This podcast was recorded at 11.35 a.m. Eastern Time on Wednesday, July 31st, 2024. Things may have changed by the time you hear this, but we'll still be making core memories with our little girl. Okay, here's the show.

Brave parents there. That sounds both adorable and stressful, because that is a tough age for a long road trip. Extremely. Hey there, it's the NPR Politics Podcast. I'm Sarah McCammon. I cover the presidential campaign. I'm Susan Davis.

I cover politics. And I'm Mara Liason, senior national political correspondent. Today on the show, President Biden has called for major reforms to the U.S. Supreme Court and to the powers of the presidency. Among those, a constitutional amendment that makes clear there's no immunity for crimes a former president committed while in office. Term limits for the court where the president would appoint a justice every two years to spend 18 years in active service on the Supreme Court. And a binding code of conduct for the Supreme Court.

Now, safe to say these changes are not coming anytime soon for a bunch of reasons we may talk about. But Sue, what do you make of this pitch from President Biden? You know, I think part of it is part of the fascinating evolution of Joe Biden as someone who was a middle-of-the-road centrist Democrat to somebody who has really captured the enthusiasm and the ideology of a lot of the progressive left. Changing the Supreme Court is not necessarily a new idea. This is something that the left of the Democratic Party, particularly in recent years, as the court has shifted to the right and has made some controversial decisions, that the calls for judicial reform have gotten louder and louder. The Joe Biden of 20 years ago probably never would have been a champion of these changes.

He's a former chairman of the Senate Judiciary Committee. But Joe Biden has changed, and he has been a very progressive president. And this seems like a further continuation of that. And you're right. It's not going anywhere anytime soon. It might not go anywhere ever. But I think that this is something he can do right now. Like he's now a lame duck president. Right. He's not he's not running for reelection now. And I think he is trying to sort of carve out this ideological space for what the Democratic Party stands for. So it's profound in the politics of it. I'm not sure it's profound in the policy, because I don't think it's something that could be implemented maybe ever. Well, Joe Biden is definitely a traditionalist. He's one of the

last ones. And he even talked about this when he announced these reforms. He was at the LBJ Library commemorating the 60th anniversary of the Civil Rights Act, which LBJ signed in 1964. He talked about how he was reticent to propose these kinds of big changes for the court, but that he had to do it because this Supreme Court is not normal. And it's gone so far out of the mainstream to change the balance of power between the branches of government that this is necessary. I have great respect for our institutions and the separation of powers laid out in our Constitution. But what's happening now is not consistent with that doctrine of separation of powers. Extremism is undermining the public confidence in the court's decisions.

But these are reforms that a lot of people, particularly on the left, have been working toward for a long time. And I mean, might they have some future after this election, if not right away? Look, I think a lot of this benefits from timing in that polling, especially in recent years, shows that the Supreme Court has reached not always historical, but at some points historical lows. A majority of Americans disapprove of the court now than approve, according to Gallup polling. This is kind of the only thing you could do, structural major reforms to a branch of government when the public doesn't have a high level of trust in it. So I think that Biden is seizing on a political reality. If the Supreme Court was really popular right now, this would seem like a really stupid thing to offer to the public. Broadly speaking, and Mara's thought a lot more about term limits on the court, but term limits are popular. If you actually, the idea of term limits. In general. Yeah. If you ask Americans, do you think members of Congress should be term limited? So it doesn't surprise me that there could be an easy sort of popular support for something like that.

I think it's the process by which you have to change these institutions, which I think it's a good thing that it's pretty hard to change branches of government without big political fights. So that's why I say the timing of it is not anytime soon and maybe not in our lifetimes. But I do think that Joe Biden is capturing an anger on the left, but certainly I think more broader than the left, that this court is out of step with the country, especially when it comes to issues like abortion or like issues of whether a former president can be prosecuted for crimes. Yes. And Sue is right. 18-year term limits for the Supreme Court is very, very popular. And what it would do is it would guarantee, once you have the transition period, it would guarantee that every president would get two nominations to the

Supreme Court. And that's something that's very popular, much more popular than the other reform that used to be talked about on the left, which was packing the court, expanding the court. But that is something, putting term limits on justices or even expanding the court, it can be done by statute. It's been done before. There was a time when we had 10 Supreme Court justices. So I think that this is not just political, but I think the president is laying down a marker for what the Democratic Party wants to see in Supreme Court reform. And as Sue said, it might take decades and decades to get it done. But on the other hand, look how long it took the right to overturn Roe, 50 years. And let's talk about that quickly.

Why would it be so hard to get this done? If you look at Republican response to this from people like Senate Minority Leader Mitch McConnell, who's played a big role in shaping the court and other Republicans, like the reaction to this was extreme rejection, saying basically Democrats are trying to change the court just because they don't like the political reality of its 6-3 conservative leaning right now. And I do think there is an argument to make that if you want to change, big, big, bold change towards a branch of government has to happen with bipartisan support. And the system is designed to not be able to do these things unless you have bipartisan support. So for instance, even if you believe it can just happen by statute, you would need at least a 60 vote

support in the Senate to get that through, which a proposal like this is not going to get that. Unless you get rid of the filibuster. Sure. But that's a whole other conversation. Under the current rules of the game, you can't do it unless you have a super majority of support in Congress. And if you do it by constitutional amendment, you need super majorities in both the House and Senate to support it and then three quarters of the states to ratify it. And like what? Anybody tell me something that could unite this country to get that level of support for amending the Constitution on any issue. Certainly not something on divisive as this. You just said the system is set up to demand bipartisan buy-in for legislation. That's right. But our politics are set up right now to mitigate against that. So the founders wanted rules and institutions that would force both sides to

compromise. But right now our politics is set up that compromise is often a dirty word. And I think that I happen to be a minority rule obsessive, but when you think about the Supreme Court, six, three, five of the six conservative judges were nominated, appointed by presidents who had lost the popular vote. The Senate that confirms Supreme Court justices is a minoritarian institution. And there is a sense in the country, and this could take many, many years to come to fruition, that the system is out of whack, that we have minority rule. When you look at the Supreme Court decisions in the last couple of years and how they stack up against public opinion, majority public opinion is against almost every single one of them. Not to mention that the Supreme Court should be solely reflective of public opinion, but

they are not elected. And in this case, most of them were put on the court by presidents who had lost the popular vote. And I think it's worth pointing out that part of the reason that Republicans under President Trump were able to stack the court in the way that they have is because then-majority leader Mitch McConnell worked within the system as it was, sort of pushed the bounds of the system, you could say, right? By refusing... Right, it's called constitutional hardball.

Right, by refusing to hold confirmation hearings for President Obama's nominee. And that sort of began the chain of events that led to where we are now, which I think has bred some frustration on the left about the way the system is set up. And can you just do a thought experiment here? Talking about McConnell and what he did to hold that seat open for 10 months, can you imagine a time ever again when we will have a president of one party and a Senate controlled by the other party where there is a vote on a Supreme Court nominee. I don't think that will ever happen again, even if the Supreme Court gets down to five justices.

I think that's a good point. And I think it's a good reminder that so much of the way stuff changes is not because our laws change, but it's because our norms changed, right? Like, Mitch McConnell changed what's acceptable and what you can do in a Supreme Court. Within the rules, but he stretched them as far as they could possibly go. Yeah. And I would also say to your point, Sarah, about how Republicans sort of changed that system. Remember, Democrats planted the seeds. It was Democrats that initially changed the rules on how you could get things through the confirmation process in the Senate. And Republicans took that norm and expanded it to include Supreme Court justices and then took that norm and expanded it to how long you had to wait to confirm them.

And I just say that in this context of judicial reform is sometimes it's like, be careful what you wish for, where Democrats go out on the limb to say, look, this is what we think should happen. Hey, maybe this does happen one day, but maybe it's when Republicans have the power and they say this court's so liberal, we need to change it, right? Change the rules. The rules have changed. I think both sides were ready to start breaking the rules. I don't think Mitch McConnell would have played by the rules if Democrats had not done that. All right. Well, we're going to take a quick break. And please, if you're not already following the show, wherever you get your podcasts, this is a great time to do it. We'll be right back.

And we're back. This was part of what President Biden promised for the remainder of his term in his address when he announced he was stepping down from seeking the presidency for another term. Given what we made of the long odds here for court reform, what else do you think Biden will be working on these last few months of his presidency? Well, certainly foreign policy. That's the president's purview. And I think he'll be working on trying to get a peace agreement in the Middle East, continuing to arm Ukraine and shore up Taiwan, too. I mean, domestically, he's a lame duck. He's not running for reelection. There is no sort of must pass cliffs in Congress in the remainder of the year. He's going to probably have to sign into law a stopgap resolution keeping the government funded. Woo. You know, that's not going to be a big deal. So I think that what's going to be curious to see for the next six months as he's still president is how he uses to spend his time. Like, again, I think this judicial thing is quite interesting and he's

trying to provoke, obviously, a political response and he's trying to excite Democratic voters in this election, trying to keep the court front and center in a lot of Democratic voters' minds. But what is Joe Biden going to be able to get done of his own agenda? Probably very little. I did also think it was interesting, like this contrast we're going to have between this lame duck president and his vice president running, where Kamala Harris is supportive, said she supported all these judicial recommendations, but there's a little bit of a like, who's driving the car here now thing like and is and is he trying to support her by putting out these kind of policy changes? Or is it sort of he's still trying to remind people, hey, there's still a president here. Right. He's still the president. But he's obviously mindful of the politics and the high stakes for this election and how close this election this campaign seems to be.

So, I mean, still, it's it's remarkable. Biden, as we've said, has sort of been seen throughout his career as a traditionalist, as a moderate. And yet, some of his policy achievements really seem to be designed to please the party base. What stands out to both of you? What do you think he'll be remembered for? Infrastructure, manufacturing renaissance, which I can guarantee you future Republican presidents will take credit for. Because those things take a long time to come to fruition. And climate. Climate, he is investing tremendous amounts of money. And lowering drug prices and allowing Medicare to negotiate drug prices. I think that was a huge goal for Democrats for a long time. I mean, to me, the story of Joe Biden is how this

moderate from Delaware who had been on the side of the banks for most of his career as representing the state of Delaware became a sort of progressive hero. Even in the weeks when it was unclear if he was going to stay in the race or get out of the race, to me, it was really notable that the voices that were so aggressively trying to keep him as their nominee were people like Bernie Sanders of Vermont and Alexandria Ocasio-Cortez of New York and Ilhan Omar, really the most standout progressive voices in the party, because they would say like he is delivered for progressives in a way that no other Democratic president has in our lifetimes. So he has an odd sort of credibility and adoration from a wing of the party that I think he probably

detested for a large part of his own political career. I guess to me, it's always just a lesson that politicians can still surprise you. Like the president that Joe Biden was is probably not the president that a lot of people were expecting him to be. All right, let's leave it there for today. I'm Sarah McCammon. I cover the presidential campaign. I'm Susan Davis. I cover politics. And I'm Mara Liason, senior national political correspondent. Thank you for listening to the NPR Politics Podcast.