The White House’s response to last week’s Supreme Court decision overturning Roe v. Wade, which in 1973 established a constitutional right to abortion, once again has exposed the tension between the conciliatory instincts President Joe Biden developed during his long career in Washington, D.C., and the ferocity of the modern combat between the two major political parties.
An array of frustrated Democrats this week openly complained that Biden and other administration officials had failed, in their initial reactions to the ruling, to reflect the urgency and anguish of abortion-rights supporters. Although Biden quickly denounced the decision last week, he has avoided any broader condemnation of the Court’s direction or legitimacy and dismissed proposals for changing its structure. Biden’s aides have stressed the limits of what the executive branch can do to mitigate the impact of the ruling.
Most notably, Biden initially refused to endorse rolling back the Senate filibuster in order to pass legislation that would restore a national floor for abortion rights—before dramatically shifting gears this morning at a press conference in Madrid to endorse a change to the Senate’s filibuster rule to create a carve-out not only for abortion but potentially also for all privacy-related rights that the Republican-appointed majority on the Supreme Court might threaten. At that same press conference, he also toughened his language against the Supreme Court, calling its abortion ruling “destabilizing.”
Biden’s earlier tepid reaction had drawn loud alarms across the party. Yesterday, Representative Ted Lieu of California, a co-chair of the House Democratic Policy and Communications Committee, told me he was “mystified” as to why Biden had not endorsed a filibuster exception, which is the most plausible option to reverse the Court’s decision because it would theoretically enable this Senate, with its bare 50-seat Democratic majority, to pass a law codifying Roe.
These complaints echoed the frustration of voting-rights activists last year, when Biden was slow to resist the broad red-state push to pass laws making it more difficult to vote. And they recall the impatience among legal analysts who have questioned the pace of the Justice Department’s investigation of former President Donald Trump’s attempts to overthrow the 2020 election. Eventually, Biden did back a filibuster exception for voting rights, and the House January 6 hearings may soon galvanize the Justice Department’s investigation.
Even so, many Democrats share a sense that on all these issues, abortion included, Biden and his team have been following, not leading. And that tendency points to an enduring question about Biden, who was first elected to the Senate in 1972 and was shaped by a clubbier, more cooperative Washington. Can he be the inspirational leader his party needs to counter the aggressive moves by Republicans in Congress and in the states, together with their appointees on the Supreme Court, to reverse long-held civil rights and even threaten democracy itself?
After Biden’s statement today, Lieu tweeted that Biden had now shown “strong leadership,” and many others in the party welcomed the announcement. But Jeff Shesol, a former White House speechwriter for Bill Clinton and the author of a book on Franklin D. Roosevelt’s conflicts with the Supreme Court, noted the tension in Biden’s remarks. “As strong as that statement was, there was a sense that he had been backed into it,” Shesol told me. “It followed days of Democrats calling on him to say something along these lines. When he finally said it, there was a sense of a yielding rather than a president who is leading.” Now the real issue, Shesol said, “is whether he will sustain the argument, or will he simply issue a statement periodically when a Supreme Court decision would seem to demand it politically?”
Even many of Biden’s critics agree that his establishment pedigree, and his promises to unify the country and work with Republicans, contributed to his victory over Trump. He reassured, they concede, many center-right voters who might have preferred the former president’s policies but recoiled from his belligerent personality and style. But to frustrated Democrats, the administration’s cautious response to the abortion decision is further evidence that Biden’s roots in an earlier political order have left him slow to acknowledge, much less respond to, the radicalization of the Trump-era GOP. The growing chorus among the president’s internal critics is that even if Biden was the right man for beating Trump, he has become the wrong man for combatting Trumpism.
“I go back in my mind to 2020 and ask: Could anyone else have beaten Trump? I don’t think so,” Tresa Undem, a pollster mostly for progressive causes, told me. “But from the perspective of some Democratic voters [now], he just doesn’t get it. Biden will be presiding over this critical period when so many people are losing rights. Can you imagine being the president when women lost the right to abortion, and election subversion [is advancing], and the whole country is worried about democracy, and you are like, ‘The Supreme Court is just fine’?”
Similarly, when asked on a conference call with reporters this week what Biden could be doing differently to respond to the ruling, Sarah Lipton-Lubet, the executive director of the Take Back the Court Action Fund, a group advocating for expanding the Supreme Court, told me he should “stop treating the Supreme Court like it’s some untouchable panel of demigods. This Court is brazenly political, and we have to stop pretending otherwise.” That sentiment among Democrats escalated further today, when the Court capped its term by hobbling the federal government’s ability to regulate the carbon emissions that cause climate change.
As concerned as many Democrats are about Biden’s advanced age and his diminished approval ratings, the persistent chatter among them about whether he should run again in 2024 centers as much on the fear that he’s a man out of time. Many activists express a similar frustration with the party’s politburo of aging congressional leaders. “It’s not necessarily only an age thing, but I do think the younger crop of leaders have cut their teeth during times when they never really believed our institutions were legitimate,” Adam Jentleson, a former Democratic Senate leadership aide and a co-founder of Battle Born Collective, a liberal advocacy group, told me. “They don’t have this nostalgia for a [prior] set of norms and principles, because they never experienced them.”
White House officials and others familiar with the president’s thinking insist that he recognizes the magnitude of the Republican offensive and point to strongly worded speeches he’s given on voting rights, the January 6 insurrection, and the abortion decision itself. They argue that Biden’s measured approach, rather than confronting the GOP more forcefully, offers a better chance of sustaining the broad electoral coalition that enabled him to oust Trump in 2020.
One White House official, who asked for anonymity to discuss internal deliberations, told me that when Biden returns from Europe, he will speak out further against the decision and connect it to the broader argument he made this spring that the “ultra-MAGA” GOP “is not your father’s Republican Party.”
“What you’ll see us doing is highlight that they want to go in an even more extreme direction, especially a national ban on abortion, especially the threats to marriage and contraception, and specifically some of the specific gut-wrenching attempts to force someone who is raped to go forward with a pregnancy,” the official said.
Although more confrontational tactics might make Democrats feel good, Biden sympathizers argue, they could alienate less partisan voters who want abortion to remain legal but are conflicted about its moral implications. Biden’s tempered approach may be less satisfying emotionally, they say, but it is more likely to succeed electorally.
Biden’s Democratic critics express more fear of demoralizing their own voters. For them, last week’s Supreme Court decision put an exclamation point on the feeling that Republicans are driving the national agenda even though Democrats nominally hold unified control of the White House, the House, and the Senate.
A national poll that Tresa Undem conducted this month quantified that sentiment. Among self-identified Democrats, she found that 90 percent said they were “worried about the direction of our democracy,” and 85 percent said they were “worried about losing our freedoms in America.” (The numbers were virtually identical among the broader coalition of Americans who support abortion rights.) These voters saw the abortion ruling, she said, as a harbinger of “something much bigger,” not just about personal autonomy but “about power and control, and who has power and who is losing it.”
Compounding those anxieties, Undem said, is “almost despair” among left-leaning voters that Democratic leaders seemingly have no plan for how to respond to this multipronged offensive. Jentleson likewise said that Biden has created an “enormous disconnect” and “feeling of powerlessness” among Democrats by failing to make a broader case against structural problems such as the Senate’s small-state bias or the skewing of the Supreme Court bench that the GOP may exploit for sustained minority rule.
“They feel the system is fundamentally corrupted; they are experiencing a crisis of legitimacy in our institutions,” he said—and they want the party to “craft a message around that. The failure to do that explains where we are right now.” Indeed, polling released this week by a coalition of liberal groups led by the Progressive Change Campaign Committee found strong agreement among Democrats, and even many swing voters, for the argument that the Supreme Court is “broken” and “facing a legitimacy crisis.”
Condemning institutions as broken is pretty much the opposite of Biden’s instinct. Yet by defending the legitimacy of the Supreme Court and the Senate, Shesol argued, Biden is missing the larger point. “We all understand him to be an institutionalist, but I think he has to ask himself, and we have the right to ask of him, what institution is he trying to preserve?” Shesol said. “Is it the Supreme Court with nine members? Is it the Senate with the filibuster largely intact? Or is the institution he should be trying to preserve our institution of self-government itself? It’s not hysterical or hyperbolic to say that is the institution in greatest jeopardy.”
Other Democrats have responded more aggressively. California Governor Gavin Newsom has turned heads by repeatedly condemning Republican states for infringing rights—and by criticizing his own party for not responding more effectively. House Speaker Nancy Pelosi this week announced she will bring forward a vote on codifying abortion rights and may schedule votes on measures to create a statutory right to contraception, as well as same-sex and interracial marriages. Representative Lieu said the House will vote on a package of abortion rights as soon as July.
Moving more quickly than Biden, several Democratic senators, including Tina Smith of Minnesota and Elizabeth Warren of Massachusetts, argued immediately that the party should commit to ending the filibuster to codify abortion rights if voters give them two more Senate seats. And a number of Democrats running for Republican-held Senate seats, such as Lieutenant Governor John Fetterman in Pennsylvania, have promised to vote to exempt abortion rights from the filibuster. But no work has yet begun, I heard from Senate sources, to determine how many current Democratic senators might sign such a pledge.
Biden did not want to be dragged into another doomed debate over changing Senate rules, but his announcement today reflected a reality that no plausible path to reversing the abortion decision exists with the filibuster in place. Even assuming the possible support of Republican Senators Susan Collins of Maine and Lisa Murkowski of Alaska, if the filibuster rule remains, the Senate could not pass such legislation unless nine or 10 more pro-choice senators win election. That is unlikely to happen in the near term, perhaps ever.
Biden’s embrace of the filibuster carve-out for abortion shows his incremental adaptation, however reluctant, to the feral modern combat between the parties. But will that be enough for Democrats desperately looking for leadership against a resurgent right that threatens to demolish everything they value?
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