As is customary for the notorious fabulist, the president invented his own reality in claiming to respect the Constitution.
Joe Biden rolled out his plan to overthrow the Supreme Court in a speech yesterday at the Lyndon Baines Johnson Library and Museum in Austin, Texas. Biden lavished praise on LBJ:
As a kid coming up, I always admired President Johnson for his public service. . . . President Johnson understood what President Lincoln understood in his own time: that the courts would determine the scale and scope — the scale and scope of our laws. . . . President Johnson vowed, in his words, “to do this job that Lincoln started” . . . by challenging the court to live up to its constitutional responsibility. . . . God bless you all, Lyndon Johnson, and Lady Bird Johnson.
Biden didn’t even bother to conceal the fact that his “term limit” proposals are motivated by the desire to overturn “extreme opinions that the Supreme Court has handed down.” Of course, as is customary for the notorious fabulist, he invented his own reality, claiming that “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.” In fact, Biden was complaining that the Court prevented Congress from criminalizing core acts of executive power in Trump v. United States, that it rolled back its own invasion of state authority over abortion in Dobbs, and that it required Congress to actually analyze existing voting-rights problems before using its remedial powers to place the federal executive branch in charge of state legislatures in Shelby County v. Holder. All of these decisions increased the separation of powers among the federal branches and between the federal and state governments. And Biden’s proposed solutions would, by contrast, reduce the independence of the judiciary.
Biden threw in the rote claim that “the court is mired in a crisis of ethics.” The message of standing for judicial ethics and separation of powers is especially ironic and lacking in self-awareness when combined with the venue and with Biden’s odes to Johnson. In reality, LBJ was an active participant in perhaps the biggest scandal in Supreme Court history (at least, the biggest since James Buchanan was privy to the deliberations in Dred Scott): the fall of Abe Fortas. Fortas in 1968 became the only Supreme Court nominee to be defeated by a filibuster, a bipartisan alliance between 24 Republicans and 19 (mostly southern) Democrats against his elevation to chief justice. That filibuster (as well as the fact that Fortas didn’t have 50 votes on his side in the Senate anyway) prevented Johnson from filling Fortas’s seat with Homer Thornberry. As the New York Times obituary described Thornberry when he died in 1995:
When President Lyndon B. Johnson decided to elevate his buddy, Abe Fortas, from Associate Justice of the Supreme Court to Chief Justice of the United States, the President did not have to look far for someone to take the Fortas seat on the Court. Judge Thornberry, who had left Congress to become a Federal district judge in 1963 and who had been named to the Fifth Circuit two years later, was even more of a Johnson crony than Justice Fortas was. The two men, who had known each other as fellow Democratic politicians in Austin, had grown far closer after Mr. Johnson was elected to the Senate in 1948 and Mr. Thornberry claimed his seat in the House. . . . When Mr. Johnson was suddenly propelled into the Presidency after the assassination of John F. Kennedy in November 1963, Mr. Thornberry, who had been confirmed for the bench the previous summer but had not yet resigned from the House, actually moved into the Elms, the Johnsons’ home in Washington, to help with the difficult transition.
In fact, it was widely suspected then that the timing of the vacancy was arranged between Johnson and Chief Justice Earl Warren (a bitter, longtime rival of Richard Nixon, who was then leading in the polls) in order to set up Fortas and Thornberry as Johnson’s legacy on the Court. This was an impression Johnson exacerbated:
On June 26, 1968, in announcing the chief justice’s intention to retire at an unspecified future date, Johnson stipulated that Warren’s resignation would not become effective until “such time as a successor is qualified.”‘ The contingent nature of Warren’s retirement upset many senators. . . . [Johnson] appeared to offer the Senate a choice – a dubious one to some senators – to confirm Fortas or have Warren postpone retirement and continue as chief justice. Senator Paul J. Fannin (R-Ariz.) denounced the contingent retirement plan as a cheap trick of “political maneuvering.”” Senator Gordon Allott (R-Colo.) was reportedly livid at what he perceived to be a “deep plot” designed to dictate to the Senate the choice of the next chief justice. . . .
A White House memorandum describing a meeting between the chief justice and the president on June 13, 1968 – the day Warren informed Johnson of his intention to retire – indicates there was further discussion between these two men on the matter of a chief justice designee. . . . Evidence suggests the contingent retirement plan originated in discussions among Johnson, Warren, and Fortas shortly after Warren expressed his intention to leave the Court. Warren’s June [13], 1968 letter to the president announcing his intention to retire as chief justice contained the key phrase, “effective at your [Johnson’s] pleasure.”‘ In accepting the letter, the president had the option of setting a definite retirement date. However, the president’s June 26, 1968 letter to Warren accepting his retirement specified that it would not become effective until “such time as a successor is qualified.”‘. . . A June 24, 1968 draft of the president’s June 26, 1968 letter to Warren bears the initials “AF,” which in all probability signifies Abe Fortas.
In 1969, Fortas became the only justice to resign from the Court because of a scandal. Johnson was deeply implicated:
Fortas revealed he had never stopped advising [Lyndon] Johnson — attending White House staff meetings, advising on judicial nominations and reporting on private deliberations by the court. Faced with a Senate filibuster, Fortas asked Johnson to withdraw his name. He returned to the court only to face another scandal when Life magazine revealed he had been receiving regular payments from Louis Wolfson, a former Wall Street client convicted of fraud. Under their agreement, Fortas was to receive $20,000 a year for life. He had returned the money, but only after Wolfson was indicted. . . .
Fortas was actively, personally engaged in giving legal and political advice to the president, including compromising the Court’s own secrecy. The president is not an ordinary citizen; the executive branch is a ubiquitous litigant before the Court. LBJ was not just a personal friend; Fortas was involved with his official duties at the time when LBJ nominated Fortas to be chief justice. . . .
After Fortas resigned, Wolfson secretly recorded a 1970 conversation with Fortas that revealed that Fortas had advised Wolfson (while a justice) on his legal difficulties with the SEC. When Wolfson referenced a 1969 letter he sent to Fortas asking for his help in obtaining a presidential pardon, Fortas responded, “Lou, don’t tell the press about that. . . . Because, Lou, that would really look bad. . . . Lou, I will not burden you on what happened after that 1969 letter. . . . Sometime, you know, several years from now when this is all over I will tell you exactly what happened.”
How involved had Fortas been with the Johnson White House while serving on the Court?
Fortas continued to advise President Johnson even as a justice. This included helping write speeches (including the 1966 State of the Union), and advising on legislation, violating the spirit of separation of powers between the branches of government. Though this seems obviously wrong now, justices have taken advisory roles to the other branches since the adoption of the Constitution. Possibly, Fortas’s advice differed in degree, as a near-constant presence in the White House as opposed to the occasional letters of other justices. . . . In any event, Fortas would be one of the last justices to advise presidents on politics while justice, at least that has become public. Making matters worse, Fortas clearly lied to the Senate about how involved he was in advising Johnson, and these lies came to light during the hearings.
By choosing Lyndon Johnson as his role model, Biden has told us what he really thinks about judicial ethics and separation of powers.