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. Lincoln, in 1860, said that the Dred Scott decision, which held that neither slaves nor their descendants could ever be U.S. citizens, was predicated on an “obvious mistake of the judges,” a willful ignorance of what the Constitution did, and did not, expressly say.
But critics of the court, invariably, face charges of radicalism, and sometimes those charges stick. In 1896, William Jennings Bryan, the Democratic nominee, paid dearly at the polls for having criticized the jurists. So did Theodore Roosevelt in 1912, when he ran to reclaim the presidency as a third-party insurgent. And in 1924, both mainstream parties descended on the Progressive candidate, Robert La Follette, who had proposed allowing Congress to override court rulings—a genuinely radical idea.
These cautionary tales were on Franklin Roosevelt’s mind in 1936. Senators, labor leaders, Brain Trusters, and cabinet members implored him to make the court the centerpiece of his campaign for reelection. His secretary of the interior, Harold Ickes, told him that if he did, he “would go down through all the ages of history as one of the great presidents.” Roosevelt rejected their advice. Privately, he railed against the conservative justices who were outlawing the New Deal. Publicly, nothing his Republican opponents said on the subject—not even their claim that he had a secret plan to pack the court—could rouse him to say a word about it. Only after his landslide reelection did he launch his plan. The Republicans, it turned out, had guessed right.
Three decades later, in 1968, Richard Nixon became the first presidential candidate since Lincoln to gain—substantially, it turned out—by attacking the court. Public discontent with the justices had, by that point, been building for some time. By addressing contentious issues like segregation, by steadily expanding the rights of the accused in decisions like Miranda v. Arizona, the Warren Court appeared, to many white working- and middle-class Americans, to be fueling the nation’s terrifying rise in crime and civil disorder. Nixon leveled this charge in speech after speech. He accused the liberal justices of “hamstringing” law enforcement and giving the “green light” to “the criminal element.” Nixon promised to appoint only “strict constructionists” to the bench, not “super-legislators.”
Ronald Reagan, in 1980, used the Nixon playbook to similar effect. This time, the flashpoint was Roe v. Wade and a long series of liberal rulings on school prayer, busing, and other social issues. Early that election year, Reagan accused the Supreme Court of “an abuse of power as bad as the transgressions of Watergate.” Time and again, Reagan said, the justices had “put themselves above the rule of law.”
Running against the court, then, is a winning strategy—except when it isn’t. History, like legal precedent, sometimes points in two directions at once. So what lessons can President Obama draw from these conflicting examples? The first, clearly, is that criticism of the Supreme Court is hardly unheard of—even vigorous criticism, even in an election year. Second, candidates for (and occupants of) the White House have an obligation to say what kind of judges they plan to appoint. Reagan talked a lot about that question in 1980, recalls Ed Meese, who helped run the campaign and later served as attorney general, because Reagan felt that appointing judges “was one of the most important things that a president did,” Meese says. It is almost always the case—it certainly is this year—that the winner of the election might have a chance to tip the balance on the court for a generation.
There’s a difference, though, between describing your ideal justice and attacking the less-than-ideal ones we’ve already got. Criticizing the court “might well be appropriate,” observes Walter Dellinger, solicitor general during the Clinton administration, but “it might also be bad politics.” This year, for President Obama, it is almost certainly both: appropriate and unwise.
It is true, as some on the left point out, that the court’s “numbers are fairly soft”: the New York Times/CBS News poll is not the only one to register a sharp drop in public faith in the institution. Others show that trust in the Supreme Court has tied record lows set back in the 1970s, and that by a substantial margin, voters expect the justices to base their health-care ruling more on politics than on the Constitution. This does not, however, put them in the president’s camp. More than two thirds of Americans—including more than 70 percent of independent voters—hope the court will overturn some or all of the ACA. In other words, if the justices oblige, a majority of Americans might question the grounds of the decision but approve of it regardless. Advantage, Mitt Romney.
In the present media environment it may be impossible for Obama to remain completely silent on the subject, as FDR did during his reelection fight. Obama will, after all, have to offer some reaction to the court’s ruling on the health-care act. But this is not, despite liberal hopes, the year for a crusade. “If President Obama took the position they were urging,” warns Meese, “he would be pretty well smacked down” by Republicans. What’s worse, Obama would be rebuffed by independents and even some Democrats. While we may be witnessing a loss of public confidence in the court, there has not yet emerged, either on the left or in the center, any great groundswell of anger against it—despite the mounting damage of Citizens United to our democracy, despite the ample evidence that the Roberts Court is indeed, as progressive groups say, a “corporate court,” untroubled by great concentrations of power, so long as it rests in private hands.
But if Obama is reelected, he will, before long, have to address the larger issue of this court and its cramped constitutional vision. In a second term, he simply cannot keep mum as the five conservative justices prevent the national government from solving national problems. This will require a big shift for Obama. He has said that previous generations of liberals grew overreliant on the courts to settle society’s most divisive questions. But today, win or lose in the health-care case, Obama must now see that until he has the support of the court, any legislative victories he achieves are only provisional.