Joe Biden Smacked Down the Supreme Court at His State of the Union

On Thursday evening, President Joe Biden delivered the final State of the Union address of his first term, and he used the occasion to administer what could only be read as a pointed rebuke to the Supreme Court justices—assembled in all their black-robed glory, sitting stone-faced in front of him. Biden said plainly that the upcoming election will see payback for the court’s reversal of Roe v. Wade, paraphrasing Dobbs’ claim that “women are not without electoral or political power.” (Justice Samuel Alito, who wrote that line, did not attend the speech because he’s still all in his sad feelings about another presidential rebuke from years earlier.) Then, looking straight at the justices, the president declared: “You’re about to realize just how much you got right about that.”

On Saturday’s episode of Amicus, Dahlia Lithwick and Mark Joseph Stern discuss the remark and the reaction it engendered. Below is a preview of their conversation, which has been condensed and edited for clarity.

To read this excerpt, and to listen to the full episode of Amicus on Saturday, join Slate Plus.

Dahlia Lithwick: It was hard to see Biden dunking on the justices and not think of President Obama, after Citizens United, dunking on the justices to their faces—to which Alito mouthed “not true,” and after which he stopped attending the State of the Union.

Mark Joseph Stern: After that episode, there was a pause in sharp criticism of the Supreme Court, to their faces, at the State of Union address, at least under Democratic presidents. Maybe in part because, you know, the justices are there. They don’t have to be. They show up. Chief Justice John Roberts begs four or five of his colleagues to join every year as a show of nonpartisanship, showing that they’re part of a unified American government when all three branches come together. I think there’s a temptation among Democratic presidents to use kid gloves or not directly criticize them at all.

That was obviously not the approach Joe Biden took. He decided to criticize them to their faces. And I really appreciated when he did that dunk and the camera panned to the justices. It looked like Biden was talking directly to Brett Kavanaugh, and Kavanaugh’s face was just ashen and pale, like he did not know how to respond. I’m sure he was boiling with fury, but he just stayed completely silent like a statue. It was very satisfying for those of us who have seen the horrific consequences of the Supreme Court’s work to watch the justices actually be confronted with those consequences, with the reality they’ve unleashed, which they’re mostly able to stay completely insulated from.

I couldn’t take my eyes off Justices Sonia Sotomayor and Elena Kagan and Ketanji Brown Jackson, who sat there for the president’s slam, which was in effect the embodiment of the dissent in Dobbs: This is the court disgracing itself in the eyes of the public. But they, too, have to sit there and just poker-face their way through it. In some sense, it felt like their “concurrence” this week in Anderson, right? Where you have justices who are trying not to say “I told you so,” but they’re just holding their faces completely still. This is the president saying: “You told us, Justice Alito, in your majority opinion in Dobbs, that if women don’t like this, they should do something about it. And I am looking in your faces and saying, in this body of your elected representatives, that women should probably do something about it.”

Biden is also saying that women have done something about it. The country has done something about it. We are seeing these extraordinary electoral victories. He said: “When reproductive freedom was on the ballot, we won in 2022 and 2023, and we will win against in 2024.” And then he promised to restore Roe v. Wade as the law of the land if he gets a trifecta in November. Some of that is standard rhetoric coming from him, but it takes on an entirely different hue when it is in front of the justices who overturned Roe, at least a few of them. Alito, who wrote that line about how women are “not without electoral or political power,” probably did not foresee the absolutely crushing backlash to Dobbs that has led to a historic reaffirmation of abortion rights in ruby-red states like Kansas and red-leaning states like Ohio, that has made abortion more accessible and more legally protected. And in a number of purple states like Minnesota and Michigan, and also blue states like New York and Maryland, which have taken a look at their abortion laws and decided to ensure that they are as robust and progressive as possible. We now have these telemedicine shield laws that are allowing providers in New York to mail medication abortion to patients in red states where it’s banned.

That, of course, is something Donald Trump will prosecute if he is elected in 2024. He will try to put those providers in prison, and possibly the women as well. Biden didn’t get into that. He probably didn’t have time or space. But it really felt like, maybe for the first time, the first since Dobbs, that Biden fully and completely embraced abortion as the winning issue—as the signature issue of his presidency in some ways. It felt like he finally got it. Which is a little ironic because the draft of the speech that was sent to the press used the word “abortion.” But when it came time for Biden to say that line, he couldn’t bring himself to use the word “abortion”; that word did not appear in the speech. He’s still an 81-year-old devout Catholic. He still can’t quite get himself to say that word in front of Congress, but his heart is in the fight, and that’s what I think the party needed to see.

I think there’s something powerful in the symbolism of retired Justice Anthony Kennedy sitting there, also Catholic, also does not like or approve of abortion. And yet, but for his replacement with Brett Kavanaugh, we would not be in this boat. So I actually think there’s something pretty powerful about these two men—who have dragged themselves, despite their predilections and preferences and sometimes inability to say the word “abortion,” to protect it nonetheless, in the interest of dignity and equality—to be sitting in the same room looking eye to eye.