I know it's like crazy sci-fi to think Biden ever would. I just want to know if the following article by Ryan Cooper is accurate. I find it nearly impossible to believe.
I've got a simple and easy solution for this. Biden declares judicial review null and void.
Democrats have a better option than court packing
There has been comparatively little attention to the simplest and easiest way to get around potentially tyrannical right-wing justices: just ignore them. The president and Congress do not actually have to obey the Supreme Court.
The weird thing about judicial "originalism" is that the explicit principle of judicial review is nowhere to be found in the Constitution. All of that document's stipulations on how the courts are to be constructed are contained in one single sentence in Article III: "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." Actual judicial review was a product of a cynical power grab from Chief Justice John Marshall, who simply asserted out of nothing in Marbury vs. Madison that the court could overturn legislation — but did it in a way to benefit incoming president Thomas Jefferson politically, so as to neutralize his objection to the principle.
Jefferson famously hated judicial review. In one letter, he said it is "a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so." But because of Marshall's canny political strategy, from that day forward Congress and the president have mostly deferred to the court's views and allowed it to strike down laws or establish entirely new legal principles even on completely spurious grounds.
As Matt Bruenig argues at the People's Policy Project, it would be quite easy in practical terms to get rid of judicial review: "All the president has to do is assert that Supreme Court rulings about constitutionality are merely advisory and non-binding, that Marbury (1803) was wrongly decided, and that the constitutional document says absolutely nothing about the Supreme Court having this power." So, for instance, if Congress were to pass some law expanding Medicare, and the reactionaries on the court say it's unconstitutional because Cthulhu fhtagn, the president would say "no, I am trusting Congress on this one, and I will continue to operate the program as instructed."
No doubt many liberals will object to this idea. It would be a fairly extreme step in terms of how America's constitutional system functions, and a lot of Democrats fear the idea of a Republican president not being hemmed in by the legal system. Big chunks of liberal political advocacy (like the ACLU) rely on pressing political cases through the courts. Conversely, conservatives have long advanced the idea that they are against "judicial activism," which makes liberals favor it more through negative polarization.
[...]
Most Americans are taught from a young age that the Supreme Court being able to strike down laws is what it means to have the rule of law. But this is not true. For one thing, as Doreen Lustig and J. H. H. Weiler write in the International Journal of Constitutional Law, judicial review is not nearly as intrusive in every other country as it is here. Some nations, like Austria or France, have a special Constitutional Court which rules on constitutional questions, but relatively infrequently. In others, like Finland or Denmark, judicial review basically never happens. In no other developed democracy does basically every piece of major legislation have to run a years-long gauntlet of tendentious lawsuits trying to get through the courts what parties could not get through the legislature.
Moreover, simply refusing to agree to judicial review has happened before in American history. As historian Matt Karp writes at Jacobin, when the Civil War broke out, President Lincoln and Congress ignored the Dred Scott decision in a law banning slavery in all federal territories, and when Chief Justice Roger B. Taney ruled Lincoln did not have the power to suspend habeas corpus, the president ignored him. As Karp argues, storming the citadel of reactionary court power was necessary to destroy slavery.
