Anyone watching the slugfest within the Democratic Party knows about its deep divisions over whether Joe Biden should run for re-election, or indeed stay in office for the duration of his term. But for all these divisions, Democrats are strongly united on two unassailable propositions. The first is that Joe Biden has been a great president on both domestic and foreign affairs. And second, the transcendent threat to democracy is embodied in Donald J. Trump, even if, as Frank Bruni wrote in the bellwether New York Times last week (before the assassination attempt deeply discredited harsh political denunciations on all sides), that Trump slyly remained on good behavior as Democrats duked it out among themselves. To make matters worse, Trump was going to—according to yet another Times stalwart, Jesse Wegman—strengthen a Supreme Court that goes about gaslighting the public by pretending to be moderate. This is the court, of course, that has handed down decisions like United States v. Rahimi, which held sensibly that nothing in the text or history of the Second Amendment required striking down a federal law that forbade a person guilty of domestic violence to possess a firearm.

One reason the Democrats are so panicky is that they fear they cannot count on Trump to defeat himself in the upcoming election—even more so now that images of a bloodied, defiant Republican candidate have been dominating news pages this week. But there is another narrative even more dangerous to the Democrats’ re-election story that needs airing. Biden and his administration have been far from blameless on key issues of public affairs. Indeed, their deeds are a far greater threat to democracy than Trump’s ill-chosen words. (Despite Trump’s improbable denial that he ever led chants of “lock her up” against Hillary Clinton, for instance, while in office Trump never sought to indict her or any other Democratic insider.)

The Biden administration rarely—at least until Biden’s recent over-the-top appearance in Detroit—resorted to crude verbal excesses of the Trumpian sort. But actions speak louder than words: two impeachments; the Mueller investigation; the Steele dossier; lawsuits in New York, Florida, Washington, DC, and Atlanta. Simultaneously, deep blue champions sought to keep Trump off the ballot in Maine and Colorado as an insurrectionist before being stopped by the Supreme Court in Trump v. Anderson, and successfully subjecting him to major fines for allegedly crooked borrowing practices in New York. Pushback to those efforts has come in serious judicial reversals such as Fischer v. United States, where the 6-3 conservative majority rightly refused to convict January 6 participants under Sarbanes-Oxley legislation designed for financial irregularities. Trump was the incidental beneficiary of that case, and the direct beneficiary of a broad reading of presidential immunity in Trump v. United States.

It is necessary to take a close look at the Biden ledger. A conservative Supreme Court used a variety of technical maneuvers to shield the Biden administration from judicial examination of its serious breaches of presidential power, starting with the efforts of Biden’s team to promote the COVID-19 mRNA vaccines.

Murthy v. Missouri was a concerted effort by two states, Missouri and Louisiana, joined by eminent physicians Jayanta Bhattacharya, Martin Kulldorff, and Aaron Kheriaty, journalist Jim Hoft, and activist Jill Hines to continue their judicial investigations into how the Biden administration sought to cajole the major social-media platforms into silencing the opponents of compulsory vaccination to stop the spread of what Justice Amy Barrett called “misinformation” about the vaccines. Much material that had been gathered in the Fifth Circuit revealed a constant pattern whereby “officials—hailing from White House, the CDC, the FBI, and a few other agencies—urged the platforms to remove disfavored content and accounts from their sites. And the platforms seemingly complied. They gave the officials access to an expedited reporting system, downgraded or removed flagged posts, and deplatformed users,” practices that continued at least until suit was filed in the Fifth Circuit. The lawsuit could be strengthened or revived at any time.

The institutional interest in finding out how much disinformation came from government officials downplaying any risks of the mRNA vaccine raise a major health care issue. Yet the entire inquiry was stopped by three members of the Supreme Court’s conservative bloc, who found that none of the plaintiffs had standing for these past acts, absent some powerful showing of future harm. Such a burden seems far too strict, given the pervasiveness of these activities. The charges against the Biden administration involve abuses of power through a coordinated strategy of promises and threats to the media platforms in order to the snuff out contrary views in a world where no new platform could arise to cater to the Biden opposition.

The same pattern was also in evidence in the recent twin cases of NetChoice v. Paxton (from Texas) and NetChoice v. Moody (from Florida), in which a unanimous court speaking through Justice Elena Kagan held that facial challenges under the First Amendment were premature. The court then sent the cases downward again with an injunction to think hard about these “content-moderation policies,” without once addressing the serious question of whether these platforms, by their various actions, abused (as I argued in an amicus curiae brief) their monopoly power. This power allows for a higher level of scrutiny than was traditionally afforded to the print and broadcast media in the predigital age. Unfortunately, the nondescript opinion by Justice Kagan guarantees that any serious review of the behavior of the Biden administration will take place only in the distant future when it is needed now.

It is not just the Supreme Court that uses standing and remands to slow down the investigation of the allegations of misconduct in the Biden administration. So too do the lower courts. Shortly after the Biden administration took power in January 2021, it took direct aim at the independent Boards of Visitors (BOVs) for the three service academies organized under the 1972 Federal Advisory Committee Act. Five of the BOVs’ members were appointed by the president pro tempore of the Senate, four by the speaker of the House, and six by the president.

Without any legal authority, Lloyd Austin, the secretary of defense in the new Biden administration, first suspended the activities of the BOVs in February 2021. He also announced that he had the unique power to appoint subcommittees, none of whose members were on the BOVs. Then, in September 2021, Biden for the first time ever fired the Trump members because he didn’t like their values. Trump had never done anything like that to Obama appointees.

On the merits, the case was a no-brainer. Then, as in the cases before the Supreme Court, procedural maneuvers took over. The DC District Court stalled until the term of the last Trump appointee lapsed, when relief was no longer available to the named plaintiffs. At that point, the plaintiffs argued for structural relief along the lines of Roe v. Wade, which allowed challenges to an action that was “capable of repetition, yet evading review.” On appeal, a unanimous panel held, in a weak per curiam opinion that never once mentioned Roe, that the district court had been right to dismiss on grounds that “[plaintiffs] lack standing to challenge the temporary suspension and the subcommittee authorization.” Once again, a procedural blockade prevented the review of a true scandal that could repeat itself if a second-term Trump were to sack all the Biden nominees to the BOVs and other advisory committees.

The question at issue involved a pure question of law, making the procedural decision even more galling: no new information about the case’s merits is gained by waiting for the next abuse to occur.

So, in looking over the recent judicial wreckage, the following trend emerges: justices and judges have decided not to hear cases on the merits even where there are serious allegations of major improprieties. This stance only encourages political actors in both parties to skirt the law.

The Supreme Court rightly held in Loper Bright v. Raimondo that Chevron deference is never appropriate on pure legal questions. Yet the court could have done the country a real service by letting us know how it would decide the case given that it had all the needed materials. In my view, the correct view is that all appropriations should be made through revenue bills that originate in the House, and not by downstream players, which shows why overturning Chevron implicates the nondelegation doctrine as well. But unfortunately, the positive effects of that reform will be minimized if the courts refuse to decide cases on the merits when an imbalance of power threatens the rule of law and the structure of American democracy.

© 2023 by the Board of Trustees of Leland Stanford Junior University