Constraining judges because of political disagreements makes country look like 'banana republic,' conservative activist says
WATCH: Leonard Leo's take on President Biden's proposed overhaul of the Supreme Court
Interview with influential conservative figure Leonard Leo on the proposed overhaul of the Supreme Court by President Biden and what it means for the 2024 election.
EXCLUSIVE– Conservative activist Leonard Leo says President Biden's efforts to overhaul the Supreme Court may be an effective way to energize his political base, but he should also watch out for less progressive voters being reminded of what's at stake in November.
"It's a good political ploy. It certainly will help to energize a Democrat base that's reeling from a lot of disorder and uncertainty lately," Leo told Fox News Digital. "But ultimately, these are the kinds of proposals that, I think, not likely to be adopted, but if ever adopted, they would really politicize the institution."
The influential fundraiser and legal activist known for his work with the Federalist Society has helped shape the conservative judiciary over several decades. Leo said in an interview Monday that Biden and Vice President Kamala Harris, the presumptive 2024 Democratic nominee who endorsed the radical overhaul efforts, could just as easily motivate conservatives.
"President Biden putting the Supreme Court into play does have the potential to energize conservatives in the presidential election," he said. "We know from experience that the court issue has always motivated conservatives and Republicans more than it motivated Democrats and liberals. So there's a good chance that by putting this issue in full view, it just allows the Trump campaign and Republican candidates for the Senate and House to talk about the successes we've had with the Constitution and the rule of law, the Supreme Court over the past several years, and that we should want more of the same. So it could potentially backfire."
Leonard Leo, C, attends the 2023 Antonin Scalia Memorial Dinner that is part of the Federalist Society's 2023 National Lawyers Convention at the Washington Hilton Hotel on November 9, 2023, in Washington, DC. (Photo by Jahi Chikwendiu/The Washington Post via Getty Images)
In 2016, then-Republican candidate Donald Trump produced a list of justices during the campaign he could potentially appoint to the Supreme Court, a politically unusual and ultimately astute move seeking to assure skeptical conservatives he would be worth their votes. That election year was marked by the prolonged vacancy left by the death of Antonin Scalia after Senate Republicans didn't hold hearings for Obama nominee Merrick Garland, lending extra importance to the White House winner.
Trump went on to narrowly win and swiftly nominated Neil Gorsuch after taking office in 2017. He would go on to also nominate Brett Kavanaugh and Amy Coney Barrett, who were confirmed to the Supreme Court in 2018 and 2020, respectively. All three were members of the Federalist Society and part of lists of originalist judges reportedly vetted for the White House by Leo, cementing his influential status.
Trump's success in the judiciary enraged Democrats and triggered calls for drastic changes, and Biden, who announced last week he would not seek a second term, finally obliged his party's left flank. In addition to calling for limits on presidential immunity, Biden's overhaul includes imposing a term limit of 18 years for justices. Once fully adopted, it would allow presidents to appoint new justices once every two years. Biden also wants to implement a "binding code of conduct" for the court, including disclosing gifts and refraining from political activity.
In a speech in Texas, Biden slammed the Supreme Court's current ethics code as "weak" and some of its recent rulings as "extreme." Biden claimed his proposals were necessary "reforms" to bring trust back to the high court.
U.S. President Joe Biden speaks to attendees while commemorating the 60th anniversary of the Civil Rights Act at the Lyndon Baines Johnson Presidential Library on July 29, 2024 in Austin, Texas. (Photo by Brandon Bell/Getty Images (Getty Images)
Leo called Biden's efforts a disguised effort to "pack" the Supreme Court, the term for trying to expand its size beyond its current statutory limit of nine. That number was set by the Judiciary Act of 1869 and thus is one bill and the president's signature away from expansion.
"President Biden's proposed overhaul of the Supreme Court is really just another dressed-up attempt to pack the Supreme Court, and to attack the integrity of the court, without any real basis," Leo told Fox News Digital.
To say the Supreme Court has been in the crosshairs of Democrats and the political left over the years would be an understatement. From Biden on down, top Democrats have openly assailed rulings like the Dobbs decision overturning Roe v. Wade, that presidents enjoy broad immunity in official acts, striking down Biden's student debt handout, and restoring Trump to the ballot in Colorado, the latter of which was unanimous. Left-leaning media outlets have also unloaded in particular on conservative justices Samuel Alito and Clarence Thomas.
Leo defended lifetime appointments as a way for judges to make decisions without having to look over their shoulders or consider future employment, but he added that to him, the debate over whether things like term limits were a good idea was not as important as what was motivating these liberal efforts: anger over individual decisions on a court with six justices nominated by Republicans.
"This debate is motivated by the fact that President Biden and Vice President Harris, and Democrats in the Senate, can't stand the current Supreme Court," he said. "They hate most of the rulings in big cases, even though those rulings are probably embraced by most Americans. They're upset about the Dobbs abortion case. They're upset about the Second Amendment cases. They're upset about the fact that the Supreme Court's finally putting checks on the regulatory and the administrative state. And so that's what this is really all about. It's a motivation to clip the wings of a court that they don't agree with.
In this handout provided by the Collection of the Supreme Court of the United States, (L-R) U.S. President Joseph R. Biden, Jr., Vice President Kamala Harris, and Justice Ketanji Brown Jackson pose at a courtesy visit in the Justices Conference Room prior to the investiture ceremony of Associate Justice Ketanji Brown Jackson September 30, 2022 in Washington, DC. (Photo by Collection of the Supreme Court of the United States via Getty Images) (Collection of the Supreme Court of the United States via Getty Images)
"And that, to me, is the greatest threat to the rule of law, more than whether a judge should serve for ten years or for life. When you start creating rules to constrain a court or to regulate a court because you don't like the outcomes in particular cases, that's when the rule of law is at greatest risk, because that starts to make our country look like a banana republic."
The current chairman of the public relations firm CRC Advisors, Leo describes himself now as "a leader and philanthropist within the conservative movement." He has expanded his aims beyond the courts to countering what he calls "liberal dominance" of corporate America, the media, educational institutions and more.
Now that Biden has anointed Harris and she's the presumptive Democratic nominee, th the potential to enact radical changes to the Supreme Court is on the ballot in November. And Leo's worried about what will happen if she is elected and has a Democratic Senate at her disposal.
"If Kamala Harris is elected president, and if the Senate is in Democrat hands, I think that there is some risk of court packing. I think that there is some risk of continued, scurrilous attacks on the integrity of the court, all based on a disagreement over the outcomes of various decisions that Democrats don't like," he said. "And that would really be most unfortunate."
The White House didn't respond to a request for comment.
Fox News' Anders Hagstrom contributed to this report.
