Republicans Have Run Against The Courts For Years; Will It Be Obama's Turn?

Republicans Have Run Against The Courts For Years; Will It Be Obama's Turn?
April 2, 2012
by Ken Rudin - NPR

In less than three months, we will know the verdict of the U.S. Supreme Court regarding the Patient Protection and Affordable Care Act, President Obama's signature achievement from 2010. There is no way to predict with any certainty what the court will decide, despite what seemed to be pretty skeptical, if not critical, questions from the justices, especially Anthony Kennedy, considered the court's swing vote.

In 2000, Democrats focused on potential Court nominees prior to the election (top button) and resentment over the Bush v. Gore decision in Florida afterwards.

But that hasn't stopped a plethora of "what if" scenarios that have made it into print and on the airwaves in the past week. Much of the conjecture has been on what happens if the Court strikes down the bill, either just the individual mandate part or the entire law. Some defenders of the Obama administration see a rejection of the bill as a net plus for the president, claiming that it will invigorate progressives for the fall campaign; others argue that it would be a huge embarrassment for someone who once was a constitutional law professor.

One thing that many seem to agree on is that if the law is overturned, Obama would not hesitate to base his campaign not only against a "do nothing" Congress, as he's been doing the last few months, but against an ideological Supreme Court. The Court, of course, is always ideological when it rules against your point of view. But the fact is, there seems to be more and more 5-4 decisions lately, reflecting a conservative vs. liberal split, rather than consensus 7-2 or 8-1 rulings. And if the conservatives hold the majority, guess which side is not going to be happy?

Going after the Court would not be something new for Obama. During his 2010 State of the Union address, he lashed out at the Court's Citizens United ruling:

"With all due deference to separation of powers, last week the Supreme Court reversed a century of law that, I believe, will open the floodgates for special interests, including foreign corporations, to spend without limit in our elections."

I'm at pains to remember the last time a president attacked the Supreme Court during a State of the Union speech, especially with members of the Court sitting in the House chamber. The moment was made even more memorable when the cameras caught Justice Samuel Alito shaking his head "no" in response to Obama's comments.

And if Obama decides to run in this fashion, it would be a pretty unusual tactic for a president to embrace, especially for a Democrat. Jason Zengerle, writing in the March 30 issue of New York magazine, notes, "Even FDR didn't go negative on the justices during the 1936 presidential campaign, waiting until after he'd won reelection to reveal his plan to pack the bench with his picks." Zengerle adds that since the Court's 1954 Brown v. Board of Education decision that desegregated schools, "the Court has generally been perceived as more liberal than conservative." And it's "tended to be held in lower regard among Republicans than Democrats. And whether it was Richard Nixon in 1968 lambasting the Court for 'hamstringing the peace forces in our society and strengthening the criminal forces' or George W. Bush in 2000 blasting it for having 'usurped legislatures' with its abortion decisions, Republican presidential candidates have attacked the Supremes to rally their base."

Both liberals and conservatives have taken up the battle against the Court and its nominees.

Actually, persuading Democratic voters on this issue may not be hard to do. Conservatives talk endlessly about judicial activism, and we don't have to go back to the 1950s or '60s, when the John Birch Society actively promoted the impeachment of Chief Justice Earl Warren, or to 1970, when then-House Minority Leader Gerald Ford talked about impeaching Associate Justice William O. Douglas. Look no further than this year's GOP primaries and Newt Gingrich's plan to arrest judges to make them justify their controversial rulings. But liberals have come to distrust the Court in recent years as well, especially since the Bush v. Gore ruling in 2000.

And should the Court strike down the healthcare law, their distrust — and anger — will likely increase. But let's wait for a decision before we decide what everyone's reaction will be.