Bashing the Supremes
Shesol, Jeff, Newsweek
Byline: Jeff Shesol
Why Obama should leave the court alone this fall.
Sometime during the next week or two, the justices of the Supreme Court will file through the red velvet curtain of the courtroom, take a seat in their high-backed leather chairs, reconfigure the electoral landscape, and promptly go on summer vacation. Such is the judicial prerogative, and it's nice work if you can get it. Whether the court upholds or strikes down President Obama's health-care law, the justices' work for this term will be done, and the argument over the Affordable Care Act will shift to the presidential campaign trail.
Yet the court itself--not just the ACA or the case that decides its fate--is already an issue in this election, and it might well become a much bigger one. That depends, of course, on the outcome of the case (among others) and how each campaign decides to spin it. For Mitt Romney, this seems a straightforward call: if the ACA survives, in whole or in part, he will renew his vow to repeal it; if the court majority overturns the act, he will use the talking points being tested by supporters like Gov. Bob McDonnell of Virginia. "A victory in court would say that a trend toward big government solutions out of Washington has a limit," McDonnell has said. Either way, Romney is certain to make the traditional Republican pledge to appoint only judges who won't "legislate from the bench."
For President Obama--he who carries the suffix "care"--the political calculus is more complex. Democrats, who are steeling themselves for an onslaught of super-PAC attacks, are fighting mad about the court's 5-4 ruling in Citizens United (2010), which brought on this baneful avalanche of cash; whether as campaign strategy or catharsis, some on the left, like Rep. James Clyburn, are pressing Obama to run against the court this year. One prominent law professor advises the president to paint the court as badly out of touch with peoples' lives, and as "just another aspect of a conservatism gone haywire." A leading First Amendment lawyer urges Obama to make the justices "as disliked as lobbyists"--which is at least theoretically possible, given the steep decline in their popularity. This month, a New York Times/CBS News poll showed that only 44 percent of the public approve of the job the court is doing. "If ever there was a time for the president to run against the court, it is now," concludes a liberal commentator.
Meanwhile, some conservatives insist that the president (fresh from his victory in the war on Christmas) is already running against the court. "Criticizing the Supreme Court is a consistent refrain from Obama," charges the columnist Kathleen Parker, presumably on the basis of Obama's recent comments about "judicial restraint," and his statement, in the 2010 State of the Union address, about Citizens United. "Politics at its filthiest," Parker complains. The relish with which the right is hyping a court fight suggests that conservatives are just as eager as Clyburn, albeit for very different reasons, for Obama to crusade against the justices. When Sen. Mitch McConnell tells the president to "back off" the Supreme Court, what he means is "bring it on."
Will the president run against the court or won't he? This is a looming, pressing question, not just a Washington parlor game. Sources familiar with the White House's thinking say that even if the health-care law is overturned, there is no chance that the president will campaign against the court. Like Franklin Roosevelt, who fought for reelection at the height of a constitutional crisis, Obama will refuse to take the bait; like FDR, he is well aware that the court issue, as one magazine put it during the 1936 campaign, "is packed with the most deadly dynamite."
Historically, the Supreme Court, and the judiciary generally, has often been an election issue, and an explosive one. Jefferson and Jackson both denounced Supreme Court decisions when they ran for president. …