2023 Supreme Court in State of the Union

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President Biden delivered the State of the Union address tonight. Chief Justice Roberts, Justice Kagan, Justice Kavanaugh, Justice Barrett and Justice Jackson were present. Justices Kennedy and Breyer were also present. As they entered, chants erupted from the stands on both sides of the corridor.

The President’s speech included only one bit about the Supreme Court. Here were his prepared remarks:

Congress must restore and codify the rights the Supreme Court took away last year Roe v. Wade To protect the constitutional right of every woman to vote. The vice president and I are doing everything we can to protect access to reproductive health care and protect patient privacy. But already, more than a dozen states are enacting extreme abortion bans. make no mistake; If Congress passes a national abortion ban, I will veto it.

But Biden issued a watered-down version of these already-chilling comments:

Congress must restore the rights that were taken away Roe v. Wade and protect Roe v. Wade [applause] Give one to every woman [?] The Right Vice President and I are doing everything we can to protect access to reproductive health care and protect patient safety. But already, more than a dozen states are enacting extreme abortion bans. Make no mistake about it; If Congress passes a national abortion ban, I will veto it.

He did not say the Supreme Court had taken away the right. He did not say Congress should codify Roe v. Wade. And he didn’t even state the constitutional right to vote. He just threatened to veto a bill that would never pass. Alas, the camera did not cut to the justices when Biden made this comment, so there were no reaction shots. Biden did not rehash Obama’s 2010 State of the Union.

Biden made a joke about court-ordering the chief justice so he could attend the Super Bowl.

There was no mention of “court reform”. There is no mention of his much talked about Supreme Court Commission. And no mention of his new Supreme Court appointee Ketanji Brown Jackson. Or as he recently put it, Ketanji Jackson drowned.

At 2:26:30 (on C-SPAN feed), Biden turns to the justices. He said, “Sorry you didn’t have to sit through it. I apologize.” Justice Kagan laughs out loud and the Chief laughs.

So much for using the bully pulpit to get to the Supreme Court.

Next, Biden asked Justice Breyer “Are you okay?” Breyer nodded, “Yes.” Then Biden approached Justice Kennedy and brought Justice Breyer back into the conversation. He then recounts a long story about Kennedy’s nomination to the Supreme Court in 1987. Biden recounted how he recommended then-Judge Kennedy to President Reagan.

On balance, this usually-stunning exercise was actually refreshing. Nice to see Justices Kennedy and Breyer back in their element. And even though we’re repeatedly told that the Supreme Court is an existential threat to democracy, Republicans and Democrats alike have cheered for the justices (including two members of Dobbs Majority), and joked with the President Chief. Things are not so bad.