Get Ready for Biden’s Cold War With Trump’s Judiciary

Court reform is dead if Republicans hold the Senate.

The U.S. Supreme Court
Al Drago/Getty Images

As of Thursday’s latest vote count, it looks likely that Joe Biden will win the presidency while Republicans hold the Senate and Democrats keep control of the House of Representatives. A divided government all but guarantees that Congress will pass no major legislation addressing the most pressing issues of the day, with the possible exception of a COVID-19 relief bill. Democrats eager to address gun violence, climate change, LGBTQ rights, voting rights, racist policing, and income inequality will run directly into the Senate buzz saw. Majority Leader Mitch McConnell might let Biden appoint a few moderate judges to the lower courts, but he certainly won’t allow the influx of liberal nominees that’ll be necessary to undo Trump’s capture of the federal judiciary. That means Biden will have to contend with a 6–3 conservative majority on the Supreme Court. And it means court expansion—Democrats’ lone play to avoid decades under conservative rule—is dead.

When the Senate inevitably stymies his agenda, Biden is sure to rely on his executive powers if he wants to get anything done. But then will come the real fight. He will suddenly find himself in constant battle with the federal judiciary—the dead hand of the Trump administration—where every one of his executive actions will be contested. Trump’s 220 judges (and counting—McConnell has pledged to keep confirming judges right up until January) will stand ready to shoot down the new president’s ambitions.

Because gridlock has rendered Congress wildly dysfunctional for the past decade, the other two branches have stepped in to fill the void. In America’s current system of government, the president and the judiciary are in a constant brawl for power. The president unilaterally makes laws that are called “executive orders” or “agency rules.” Somebody almost immediately challenges those laws, often state attorneys general from the opposing party. The Supreme Court then gives an up or down vote on the president’s actions. Aside from tax cuts, every major policy dispute during Trump’s presidency was resolved in this fashion. There is no reason to believe that Biden’s presidency will break this pattern.

But there is good reason to believe Biden’s outcomes will be substantially worse than Trump’s. The reason is obvious: Trump has built up a judiciary that grew increasingly favorable to his agenda, culminating in the confirmation of Amy Coney Barrett to the Supreme Court. Trump lost a few big cases, failing to add a census citizenship question and repeal DACA because of Chief Justice John Roberts’ distaste for sloppy lies. But he won almost everything else. The judiciary let him raid the federal treasury to build a border wall with Mexico, severely restrict asylum, impose a wealth test on immigrants, deregulate the environment and Wall Street, ban transgender people from the military, defund abortion providers, illegally appoint cronies to Cabinet positions, shield cronies from subpoenas, and ban immigration from Muslim-majority countries.

And all that happened before Barrett’s confirmation. Her elevation to the Supreme Court entrenches a hard-right supermajority that poses an existential threat to the entire Democratic project. That’s why, in the weeks before Election Day, so many progressives were urging Biden to expand the court, and do so immediately. Every item on Biden’s wish list is now subject to a Supreme Court veto. Nothing he does will escape judicial scrutiny. Roberts, the only conservative justice willing to moderate his views for the sake of institutional legitimacy, has been neutralized. There are now five other conservatives who are plainly eager to hobble the Democratic Party by any means necessary.

Had Democrats seized the Senate, they could have faced this problem head-on. The most obvious solution was to expand the court, adding seats to dilute the conservative bloc’s dominance. Democrats could have also explored 18-year term limits for justices and jurisdiction-stripping to stop them from striking down progressive measures. Without the Senate, by contrast, the Biden administration and blue states will have to explore more perilous options if SCOTUS boxes them in at every turn. The president could deploy departmentalism, arguing he has independent authority to interpret the Constitution that no court can overrule. Blue states could revive interposition, purporting to nullify court orders with which they disagree. But these are dangerous theories that have, in the past, edged the United States toward disunion. There’s little chance Democrats would be daring enough to test them out, even if the judiciary continues its scorched-earth campaign against democracy.

Which means McConnell was right: The jurisprudence of Trumpism will outlast Trump by decades. Because this catastrophe will unfold more slowly than the typical political disaster, it might be tempting to ignore. There is a natural, sane impulse to be relieved at the prospect of life not in thrall to an erratic, vicious tweeter in chief. There is a natural, sane impulse to believe that life in the Obama era, when Mitch McConnell proudly stymied every legislative endeavor, wasn’t that bad compared with the existential mayhem of the past four years.

But the Obama era didn’t include a judicial branch hand-picked for its youth and its radicalism, for a decidedly nonjudicial “own the libs” vibe, for a willingness to press the machinery of the courts into service of the singular goal of humiliating, belittling, and diminishing a President Joe Biden. We’re about to learn what that kind of judiciary is prepared to do and say to ensure that Biden is, as McConnell once pledged of Barack Obama, a one-term president. And it will take far longer than one presidential term to undo the damage.

This was why McConnell was willing to seat justices and judges up to the last minute, in lieu of legislating COVID relief. It’s why so many conservatives were in an oddly gleeful mood on Wednesday even as it became clear that Trump is losing. As soon as he takes the oath in January, Biden will face a new kind of gridlock, a cold war with the judiciary that will get hot fast. The GOP will challenge every move he makes, then accuse him of intransigence and partisan obstinance during the 2022 midterms, blaming the country’s woes on his inaction. Like so many Democrats before him, Biden will spend his presidency battling with Republicans. But his most powerful foes cannot be voted out of office.