The Supreme Court Molded Joe Biden

He could now have a chance to shape it.

President Joe Biden, the Supreme Court building, and justices
The Atlantic / Anna Moneymaker / Jim Watson / Michael Zwahlen / Getty

Joe Biden became president in no small part because he’d been vice president. Had he become neither, he would have been remembered for something else entirely: the fate of Robert Bork and Clarence Thomas, two of the most divisive Supreme Court nominees in living memory. Now Biden has a chance to leave his most distinct imprint on a Court that shaped his legacy every bit as much as he influenced its makeup. His first pick could happen at any time: The oldest justice, Stephen Breyer, is 82 and under pressure to resign should the Democrats’ slender Senate majority vanish in the 2022 midterm elections.

Few presidents have been as bound up with the Supreme Court as Biden. A lawyer by training, he took over the Senate Judiciary Committee in 1987 under an agreement struck with Democratic Senator Edward M. Kennedy that would prove to be a risky trade-off. Biden had announced that he was running for president three weeks before President Ronald Reagan nominated Bork. Under the best of circumstances, the committee’s workload would eat into the time he needed to compete in a large Democratic field. But the position would also give Biden a national profile, for better and worse.

In October of that year, Bork was defeated by the most lopsided vote of any Supreme Court nominee in American history. Biden was in the same spot four years later when Thomas was confirmed by the slimmest margin in more than a century, following Anita Hill’s allegations that he had sexually harassed her. Each set of hearings became a nationally televised drama that earned Biden enemies and admirers who’ve never forgotten his outsize role. In the Bork case, he demonstrated pliable convictions and wobbly political instincts before settling on an approach that effectively sank the nomination. In his treatment of Hill, Biden revealed an obtuseness that he would spend the next three decades trying to live down.

“There has never been a president who has spent more time and effort dealing with the Supreme Court in several different roles than this president, dating back to when he first came to the Senate in the early 1970s,” Jeffrey Blattner, a former chief counsel to Kennedy, told me. “He’s seen it all, and he’s been through it all.”

When the nation got its first close look at the new Judiciary Committee chair, there wasn’t all that much to see. Biden was approaching middle age, no longer the wunderkind who’d been elected at the age of 29. On the Senate floor he was surrounded by people whose stature he might never equal: John Glenn of Ohio, the first American to orbit Earth; Bob Dole of Kansas, who’d twice been awarded the Purple Heart for combat in World War II; and Kennedy, who would compile one of the strongest legislative records in history. As for Biden, he still seemed in search of an identity. He came off as a caricature of a retail politician: eager to please and impress, someone whose skill was reading the room and offering the talking points it wanted to hear. “I would never consider Joe a heavyweight,” former Senator John Danforth, a Missouri Republican who was Thomas’s chief patron, told me. “He’s a politician in the best sense of the word, the kind of person who liked to work things out. He was not, say, Ted Kennedy in his charisma or talent. But he had that same quality of ‘Okay, how far can I get working the system to do this?’”

Liberals were unhappy that Kennedy had agreed to turn over such an important chairmanship to someone they deemed unreliable. The year before, Biden had given an interview to The Philadelphia Inquirer in which he’d blurted out that, absent any incriminating information about Bork, he’d be inclined to vote for him should he be nominated. Estelle Rogers, then the director of the Federation of Women Lawyers, said Biden should relinquish the chairmanship if he was unable to “exercise the kind of leadership we expect.”

The ultimatum reflected the stakes. Bork would be succeeding Lewis Powell, a pro-business Republican who’d been nominated by President Richard Nixon in 1971. An American Civil Liberties Union analysis showed him to be the swing vote in 20 “important civil liberties cases.” Conservatives had grown impatient with Reagan’s failure late in his second term to usher in the social agenda he had promised, and were delighted to see Powell gone. With Congress blocking Reagan’s push to outlaw abortion and permit prayer in public schools, the White House concluded that the Supreme Court was the only path left. Installing Bork would cement a conservative majority that would roll back the liberal overreach of the federal courts. “In many areas—abortion, crime, pornography, and others—progress will take place when the federal judiciary is made up of judges who believe in law and order and a strict interpretation of the Constitution,” Reagan said in a speech to the Knights of Columbus in 1986.

Bork embodied that philosophy. He was an architect of the “originalist” school of jurisprudence, holding that judges should be guided by what the Framers intended when they wrote the Constitution. Adherents believed this was the only way to keep judges tethered to the nation’s founding compact rather than their own sensibilities. “My objection to Bork was not simply one of methodology and approach,” Laurence Tribe, a Harvard Law School professor emeritus who advised Biden during the Bork proceedings, told me. “It was that his methodology would lead to a constitutional universe that was profoundly unacceptable and inconsistent with the whole idea of the Constitution as a document not frozen in time.” In his writings, Bork had criticized Supreme Court decisions maintaining that privacy is protected under the Constitution, the interpretation that underpins Roe v. Wade. Alarmed by the prospect of Bork’s elevation, and especially by the threat he posed to abortion rights, liberal groups mobilized and pressed Biden to oppose Bork.

At the time, that was asking a lot. In the previous 57 years, the Senate had rejected only two nominees to the Supreme Court. “The conventional notion, which was widely shared, was that it was not appropriate for a senator to vote against a nominee on philosophical grounds so long as he was the president’s choice, was not a child molester, and had an IQ above ground level,” Tribe told me. After speaking with a range of constitutional scholars, Biden concluded that if Reagan’s prime purpose in nominating Bork was to push the Court rightward, the Senate was well within its purview to say no.

Pitting himself against Bork would be the fiercest test Biden had confronted on so public a stage. He was facing off against a figure of great intellectual heft, a former Yale Law School professor who’d been confirmed by the Senate five years earlier for a seat on the U.S. Court of Appeals for the District of Columbia Circuit. And Biden? A graduate of Syracuse Law School, he had long seemed defensive about his intellectual bona fides. During the hearings, news broke that in his first year of law school he’d taken five pages of a law-review article without proper citation for a paper he’d written, a disclosure that hastened his early exit from the 1988 presidential race. “I can’t tell you the number of times Biden said to me, ‘I know you’re a better lawyer than I am’ or ‘I didn’t go to Yale like you did,’” John Bolton, a Justice Department lawyer at the time who worked to advance Bork’s nomination, told me. “I don’t care one way or another. But the fact that he says it over and over again is an indication he feels sensitive about it.”

To prepare, Biden plowed through Bork’s writings and held mock hearings during which he tried out various lines of attack. Tribe and others played the part of Bork. Aides videotaped the sessions, and Biden played the tapes for his wife and sons, looking for feedback. Biden hit upon a strategy: He would focus on Bork’s view that the Constitution did not hold a general right to privacy, an issue that people who would be watching on television could immediately grasp.

Sitting to Kennedy’s right, papers spread out in front of him, Biden asked Bork about Griswold v. Connecticut, the 1965 Supreme Court case that challenged a state law banning the use of contraceptives, including by married couples. In its 7–2 ruling striking down the statute, the Court established for the first time a constitutional right to privacy. Biden confronted Bork in a matter-of-fact tone, patiently asking him to explain his reasoning that the decision was flawed. His mien was earnest, searching. At no point was he scornful. Days of study paid off. Walking the onetime professor through the Griswold case, Biden teased out that Bork would have left it to state legislatures to decide whether a married couple was free to use birth control.

“Does a state legislative body, or any legislative body, have a right to pass a law telling a married couple … behind their bedroom door, telling them they can or cannot use birth control?” Biden asked. Bork struggled to explain his thinking in terms a layperson would understand. “All I have done was point out that the right of privacy, as defined or undefined by Justice [William] Douglas, was a free-floating right that was not derived in a principled fashion from constitutional materials,” he said. The more Bork talked over five days of testimony, the more public opinion turned against him. Senators defeated the nomination by a 58–42 vote. “I was inclined to vote for Bork when he first came, but he just talked his way out of it,” Dennis DeConcini, a former Democratic senator from Arizona who served on the committee at the time, told me. “He couldn’t help himself to demonstrate to any senator who was questioning him that he—Bork—knew more about anything being discussed.”

Reagan ultimately filled the vacancy with Anthony Kennedy, a U.S. appeals-court judge based in San Francisco. A worthy thought experiment is how history might have changed had Bork been confirmed. Kennedy was no liberal. In 2000, he voted with the majority to end the recount in Florida, handing the disputed presidential election to Republican George W. Bush. A decade later, he wrote the Citizens United opinion that allowed corporate money to sluice through the political system. But Kennedy came to be a swing vote on the John Roberts Court, ruling in favor of same-sex marriage and affirming that abortion is a protected freedom. It’s hard to imagine Bork signing on to either.

Bork became a martyr of the right. His name soon entered the conservative lexicon: Borked is now shorthand for maligning a nominee. “I don’t think the hearing was fair in the sense that the whole thing was kind of a burning in effigy,” Bolton told me. The spectacle also gave the nation its first real impression of Biden. Prone to saying more than he should, Biden fumbled the Inquirer interview by suggesting that he’d vote to confirm Bork. After the nomination was announced, he showed more discipline. Watching old video clips of the hearing, one doesn’t get a sense that Biden was out of his depth as he led the judge from one case to another. Elucidating complex legal theories isn’t easy. Biden pulled it off; Bork did not. “The Bork hearings were the most important and consequential Supreme Court hearings of the 20th century,” Ralph Neas, a leader of the liberal coalition that lobbied against the confirmation, told me. “Joe Biden’s management of those hearings was masterful.”

Four years later, Thurgood Marshall announced that he was retiring from the Supreme Court. Marshall, a civil-rights pioneer who had argued the Brown vs. Board of Education case before the Court in 1954, had been the first Black American to serve as a justice. Asked about the sort of person he’d like to succeed him, Marshall said, “Me.” That’s not what America got. President George H. W. Bush nominated Clarence Thomas, calling him the “best qualified at this time,” a risible claim. Just 43 years old, Thomas had been a judge for only 16 months, having served in the Reagan administration as a senior official at the Department of Education and as the chair of the Equal Employment Opportunity Commission. What he possessed were conservative credentials and Senator Danforth’s relentless advocacy. Biden and fellow Democrats knew they had to tread carefully, wary of targeting a nominee who would be only the second Black American to serve on the Court.

Biden opened the hearings by questioning Thomas about the most abstruse topic imaginable: natural-law philosophy. Unpacking Thomas’s views on the subject, he told the judge, was “the single most important task of this committee.” A far more urgent task would arise soon. Senate Democratic aides had been talking by phone with a University of Oklahoma law professor named Anita Hill about her allegations that Thomas had sexually harassed her when she worked for him at the two federal agencies. Two days into the hearings, aides told Biden about the charges, according to Jane Mayer and Jill Abramson in their book, Strange Justice. Eleven days later, Hill faxed a four-page statement laying out the charges, describing how Thomas had spoken to her about pornography, bestiality, and his “sexual interests.” Biden didn’t provide the statement to all the Democrats on the committee until right before they voted on Thomas’s confirmation. Earlier that day, Biden had appeared on the Senate floor to announce he would oppose the nomination. Still, he called Thomas a man of “high character,” failing to mention Hill or her charges. A press leak finally forced the issue into the open. A group of women House members left the chamber to confront Senate Democrats, demanding that Hill be allowed to testify and delivering the message that sexual-harassment charges could no longer be ignored.

Giving the nominee all the time he needed to sabotage his chances worked in the Bork hearing, but the strategy backfired when it came to Thomas. Forced to reconvene the hearings, Biden allowed Thomas to testify before Hill, giving him the strategic advantage of defending himself on his terms and winning public sympathy. He denied Hill’s allegations while declaring himself a victim of a “Kafka-esque” persecution and relating that his mother was “confined to her bed, unable to work, and unable to stop crying.” When it was her turn to testify, Hill upended the perception Thomas had sought to create that he was a target of a “high-tech lynching.” Composed throughout, she testified about how Thomas had pressured her to date him and boasted of his sexual prowess.

“Running the Bork strategy on Clarence Thomas wasn’t the right strategy,” Anthony Podesta, who worked with Kennedy to oppose the Bork nomination, told me. “Giving him the floor and letting him talk about his ‘high-tech lynching’ proved not to be a self-immolation in the way it was with Bork.”

The revived hearings created a kind of “he said, she said” dynamic, though it didn’t have to play out that way. Other women were prepared to give in-person testimony that would have bolstered Hill’s account of Thomas’s mistreatment. But Biden and his committee didn’t let that happen. “Surely, in retrospect, there is a lot that [Biden] should have done and could have done,” Angela Wright, who also said that Thomas had harassed her while she was working for him at the EEOC, told me. Biden, she added, “just didn’t want to touch it. He didn’t want to have to manage the whole process. He just wanted the whole thing to go away.”

Neither side came away from the Thomas hearing feeling well served. Danforth told me that Thomas felt misled by Biden. “He says that Biden had said if anybody attacked Clarence personally, he—Biden—would be Clarence’s biggest defender,” Danforth said. “And Clarence’s view, expressed to me, was that Biden did not live up to that commitment.” No less upset were Thomas’s opponents. “He should have let the witnesses who would have testified against Thomas talk,” Susan Deller Ross, who was a lawyer for Hill, told me. “He kept out a lot of relevant evidence.” Many believe Biden should have used his gavel more aggressively, cutting off harsh questioning from Republican senators who impugned Hill’s character.

If the Bork nomination was a step in Biden’s maturation, the Thomas confirmation exposed a politician who seemed lost. At one point in the hearings, he said his overriding priority was “fairness.” Fairness to whom? It wasn’t fair to Hill that other witnesses were barred from giving live testimony that might have corroborated her harassment claim. Nor was it fair to the nation that Hill’s allegations or Thomas’s denial didn’t get publicly aired until the hearings were so far along. The moment called for a measure of political courage that Biden couldn’t muster. When it came to Bork, the chair was appropriately skeptical; when it came to Thomas, he was inexplicably deferential.

As he prepared to enter the 2020 presidential race, Biden placed a call to Hill. “I talked to her while I was supporting Joe,” Barbara Boxer, the former Democratic senator from California, who was part of the group of congresswomen who demanded that the Senate hear Hill’s allegations, told me. “I called her at that time, and she was very willing to talk to him. I don’t want to speak for her, but she was happy to talk to him, and they talked at length.” Later, Biden’s campaign released a statement in which he voiced “regret for what she endured”—a passive formulation. “I cannot be satisfied by simply saying, ‘I’m sorry for what happened to you,’” Hill told The New York Times.

Do-overs have long been part of Biden’s history. Throughout his career, he’s used his platform to rectify what the passage of time has shown to be mistakes in the eyes of his party. In 1996, he voted for a bill defining marriage as between a man and a woman. As public acceptance of same-sex marriage grew over the years, he jumped in front of President Barack Obama by announcing in 2012 that he was “completely comfortable” with it. Biden voted to authorize the Iraq War in 2002, but as the folly of George W. Bush’s invasion became painfully apparent, he conceded the vote had been “a mistake.” At a debate in South Carolina last year during the Democratic primary, he vowed to nominate the first Black woman to serve on the Supreme Court—redemption, perhaps, for the hearings that resulted in Thomas’s elevation. Representative James Clyburn, a South Carolina Democrat who had privately advised Biden to make the commitment at the debate, told me, “All of us know that Clarence Thomas’s hearing was used by a lot of people as a mark against Biden. I think it would be great for him to be the first president to appoint an African American woman to the Supreme Court.”

“It would be a nice bookend,” he added.