How Obama Can Attack the Supreme Court—and Win

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Some liberals want the president to go after the Court in the upcoming election. History shows there is a right way and a wrong way to do it.

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Fearing that the Supreme Court will strike down the Affordable Care Act, various commentators have called on President Obama to "run against the Supreme Court" this fall. A few have even urged liberals to rethink the practice of judicial review.

The idea of "running against the Court," however, covers many different political strategies, some bad and others even worse. If a president wants to make Supreme Court decisions an issue in an election campaign, history shows that there is a right way and a wrong way to do it.

Modern presidents running for reelection should be cautious about direct attacks on the Supreme Court and its power of judicial review. First, the Supreme Court, like the military, is one of the most respected institutions in American government, often far more respected than either the president or Congress. Second, the institution of judicial review is by now well-entrenched -- indeed, around the world it is generally regarded as one of America's distinctive contributions to constitutionalism.

The best way for a president to respond to an oppositional Court is not to aim at it directly but to attack its ideological allies.

Third, and perhaps most important, modern presidents need the power of judicial review, because federal courts are important elements of the national political coalition and the national political process. Presidents need the courts to establish the legitimacy of their actions and support their positive programs. They need courts to defend and enforce rights that the administration believes are worth defending and enforcing. And they need the courts to police political outliers in state and local governments -- the most famous example being southern governments during the civil-rights era that sought to preserve Jim Crow after most of the country had rejected it.

The power of judicial review is especially important to presidents when Congress and a majority of state legislatures are controlled by the opposite party. When the president faces serious political headwinds, an independent judiciary may be the only refuge.

The best approach for a presidential candidate is not a direct assault on a hostile Supreme Court. Rather, it is a careful strategy that, while accepting the Court's power, reframes the Court's work and offers promises for reform. History shows that successful presidents have been far more subtle in how they used the Court and its opinions to their advantage than the simple idea of "running against the Court" might suggest.

Abraham Lincoln made his political career in part by attacking the Dred Scott decision. But Lincoln criticized the Court in limited and specific ways. He argued that the Supreme Court blocked desirable change because it had made it impossible to ban slavery in the territories -- the central plank in the Republican Party's platform. Even so, Lincoln made clear that he would treat the Dred Scott decision as law and would respect the Court's power of judicial review. Instead, he promised to try to overturn the decision through new Supreme Court appointments.

Despite what many people think, Franklin Roosevelt did not run against the Supreme Court in the 1936 presidential campaign. He had every reason to, of course: The Supreme Court struck down significant elements of early New Deal legislation, including the National Industrial Recovery Act in the Schechter Poultry case. Roosevelt strongly criticized the Court's decisions in a couple of famous press conferences. But that is as far as he went. Roosevelt did not make the Supreme Court a major focus of attention in his 1936 presidential campaign. Instead, Roosevelt directed his attacks primarily at the Republican Party and the American Liberty League. The Liberty League, financed by wealthy industrialists, was devoted to attacking the New Deal and accusing Roosevelt of being a socialist. The League attempted, unsuccessfully, to present itself as a bipartisan grassroots organization that represented the interests of ordinary citizens. Roosevelt skillfully used it as a foil in his 1936 campaign. Attacking the League and the Republican Party allowed Roosevelt to criticize the Court through indirection.

Only after his landslide re-election in 1936 did Roosevelt announce his ill-fated court-packing plan. He believed that his electoral mandate and overwhelming Democratic majorities in both houses of Congress would give him the necessary tools to reshape the Court. But Roosevelt soon discovered that he had badly miscalculated. The court-packing plan failed in Congress and it wrecked his domestic agenda for the rest of his presidency.

Instead, Roosevelt was able to reshape the Supreme Court through nine consecutive appointments, transforming it from a sometime opponent of the New Deal to a staunch supporter, and in the process revolutionizing constitutional doctrine in multiple areas. The lesson of Roosevelt's presidency is that the best way for a president to respond to an oppositional Court is not to aim at it directly but to attack its ideological allies, and to use the appointments process to stock the courts with new judges who support the President's programs and values.

Richard Nixon's 1968 campaign offers a more recent example of a presidential candidate who is thought to have run against the Supreme Court. Yet Nixon did not challenge the Court's power of judicial review. His rhetorical strategy was careful and calculated. Like Roosevelt, Nixon blamed the Court for being unrealistic and for imposing unpopular policies on the American public. He argued that the Court's criminal-procedure decisions hamstrung police officers who were trying to prevent crime and preserve law and order. Nixon supported Brown v. Board of Education but argued that courts had overstepped their authority by ordering busing. Finally, he promised to appoint "strict constructionist" judges who would reverse the liberal tendencies of the Warren Court.

One again, like Roosevelt, Nixon did not directly attack the Court's power of judicial review. Instead, he argued that the justices had hindered important and popular social reforms. He associated the Court with an overzealous, out-of-touch liberalism that had gone too far, and he promised to use the appointments process to reshape the Court's doctrines.

These historical examples suggest the most likely avenues for presidential success in facing a hostile Supreme Court. First, as noted above, successful presidents, at least in the modern era, do not directly contest the Court's power of judicial review. Instead, they argue that the Supreme Court has misinterpreted the Constitution (Roosevelt), has overreached (Nixon), or is seriously out of touch with the public's values (both). They argue for a return to the constitutional text and common sense (Roosevelt), for strict construction (Nixon), or for a return to the values of the framers (Reagan).

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Jack M. Balkin is the Knight Professor of Constitutional Law and the First Amendment at Yale Law School, and the founder and director of Yale's Information Society Project.

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