For Barack Obama, Law Professor, the Time to Lecture Is Now

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The president has been criticized for defending the health-care law while the Supreme Court is still in session. But perhaps, like Roosevelt 75 years ago, he should be even more vocal.

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Compare the words and deeds of two Democratic presidents, both in their first term, both navigating the ship of state through rough economic waters, both dealing squarely with two separate editions of a very conservative Supreme Court. Franklin Delano Roosevelt's struggle with the justices of his era is both legendary and instructive. He famously lost the battle over his ill-conceived court-packing plan. But he won the war over much of his landmark legislation when the Court's conservatives either retired (Justice Willis Van Devanter) or timely changed their minds (Justice Owen Roberts).

President Barack Obama's struggles with the current Court are also well documented. In 2010, he famously criticized the Court's conservatives for their Citizens United ruling, a 5-4 decision along ideological lines which has had enormous (and, you could argue, dire) political consequences for the 2012 election. And now, after last week's oral arguments over the Affordable Care Act, President Obama is confronting the very real possibility that his administration's signature piece of federal legislation, the new health-care law, in whole or in part, will be tossed aside by the same five justices.

When President Obama on Monday (and again on Tuesday) offered his own legal analysis, when he accurately identified the hypocrisy the health-care law's defeat would reveal about "judicial activism," he raised for renewed public consideration the question of what a president should or should not say while a Court case is pending. The president's comments were immediately criticized. On the left, Andrew Rosenthal of The New York Times wrote that the president missed an opportunity to more directly defend the law. On the right, Senate Minority Leader Mitch McConnell (R-Ky) called the remarks a "beyond distasteful" attempt to intimidate the justices. Even the often rogue 5th U.S. Circuit Court of Appeals somehow interjected itself into the fray.

Everything a president says has a political component to it. And virtually everything that has been said about this particular law has come to be viewed through a political prism. To its detractors, the law is a full assault on freedom -- the freedom to refuse to be part of a national policy with which they don't agree. To its supporters, the law is now a political bellwether, signalling both a limit to progressive legislative action and the constitutional peril a Republican-controlled Congress and White House would bring. In this context, and especially compared with the past, what President Obama said was a virtual mash note to the justices.

ROOSEVELT

On May 27, 1935, the United States Supreme Court announced its decision in Schechter Poultry v. United States. The justices ruled unanimously that Section 3 of the National Industrial Recovery Act, another one of Roosevelt's New Deal programs, represented an unconstitutional delegation of legislative authority to the executive branch. Four days later, an angry and frustrated president called reporters in for a press conference. Here's how Jeff Shesol, in his masterful book Supreme Power, describes what happened next:

He turned now to Schechter itself. "The implications of this decision," he said, "are much more important than almost certainly any decision of my lifetime or yours, more important than any decision probably since the Dred Scott case, because they bring the country as a whole up against a very practical question. That is in spite of what one gentleman said in the paper this morning, that I resented the decision. Nobody," he said, "resents a Supreme Court decision. You can deplore a Supreme Court decision, and you can point out the effect of it."

Which is what he did -- point out its effects -- for the remainder of his press conference. It was a remarkable performance. For nearly an hour and a half, Roosevelt spoke without notes, without interruption, slowing only occasionally to replace the cigarette in his ivory holder. Never had a president talked so directly, so extensively, or with such ease and fluency about the Constitution -- its interpretation, its evolving meaning. His tone was calm and firm. His smile, which rarely left his face, failed to conceal his seriousness or, on occasion, his irritation.... Like a tenth justice delivering a dissent, he dissected the opinion.

Shesol told me Tuesday that while "FDR was generally pretty careful not to lobby (or warn) the Court about a pending decision... he did launch his court-packing plan -- and set his supporters loose on the Court -- at a time when the Court was considering the fate of Social Security and the National Labor Relations Act, both of which he (and pretty much everyone) assumed the Court would strike down." The Court, of course, dramatically upheld those statutes after a series of presidential speeches like this one from March 4, 1937:

The Democratic Administration and the Congress made a gallant, sincere effort to raise wages, to reduce hours, to abolish child labor, to eliminate unfair trade practices. We tried to establish machinery to adjust the relations between the employer and employee. And what happened? You know who assumed the power to veto, and did veto that program. The Railroad Retirement Act, the National Recovery Act and the Guffey Coal Act were successively outlawed as the Child Labor Statute had been outlawed twenty years before.

Soon thereafter the Nation was told by a judicial pronouncement that although the Federal Government had thus been rendered powerless to touch the problem of hour and wages, the States were equally helpless; and that it pleased the "personal economic predilections" of a majority of the Court that we live in a Nation where there is no legal power anywhere to deal with its most difficult practical problems -- a No Man's Land of final futility....

Furthermore, court injunctions have paralyzed the machinery which we created by the National Labor Relations Act to settle great disputes raging in the industrial field, and, indeed, to prevent them from ever arising. We hope that this Act may yet escape final condemnation in the highest court. But so far the attitude and language of the courts in relation to many other laws have made the legality of this Act also uncertain, and have encouraged corporations to defy rather than obey it...

On March 9, 1937, in one of his fireside chats, President Roosevelt was even more blunt. To the American people, he said.

The Court in addition to the proper use of its judicial functions has improperly set itself up as a third House of the Congress -- a super-legislature, as one of the justices has called it- reading into the Constitution words and implications which are not there, and which were never intended to be there...

We have, therefore, reached the point as a Nation where we must take action to save the Constitution from the Court and the Court from itself. We must find a way to take an appeal from the Supreme Court to the Constitution itself. We want a Supreme Court which will do justice under the Constitution -- not over it. In our Courts we want a government of laws and not of men.

OBAMA

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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