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).

Second, successful presidents criticize the Supreme Court by focusing on popular policies that Supreme Court decisions hinder or make impossible. Nixon succeeded in 1968 because many Americans were tired of or frightened by the social unrest of the 1960s, and Nixon was able to convince them that the Warren Court's decisions were partly responsible. Roosevelt successfully argued that the constitutional dogmas of Republicans and the Liberty League -- and by implication the Court -- were blocking the way out of the Great Depression.

Third, instead of challenging the Court directly, successful presidents cleverly tie the Court to political opponents who lack the same degree of public confidence. Roosevelt wove a powerful narrative that connected the Court's anti-New Deal decisions with the views of Wall Street and the Liberty League. Nixon explained how the Warren Court's criminal-procedure decisions were a symptom of liberal permissiveness and a liberal ideology that had grown dangerously out of touch with Americans' core values.

Fourth, successful presidents respond to a contrary Court by promising that they will appoint new judges and justices who will restore the Constitution to its proper interpretation. This strategy not only worked only for Lincoln, Roosevelt, and Nixon; it has also been the central gambit of the modern Republican Party, which, since 1980, has promised to appoint judges who will respect the sanctity of innocent human life (i.e., limit or overturn Roe v. Wade) and who will restore the framers' understandings.

Apply these lessons to Obama's re-election campaign. Suppose that the Supreme Court strikes down part or all of the Affordable Care Act. The last thing the president should do is attack the Court's powers of judicial review, or suggest that the Supreme Court lacks the right to pass on the constitutionality of legislation. After all, Obama will want the federal courts to use that same power to strike down laws that burden policies and groups he supports.

Instead, Obama should identify popular policies that the Court's decisions have hampered or prohibited, and explain to the American people that the Court is preventing the government from doing the people's will and serving the public interest.

The Court will greatly assist Obama in this task if it strikes down the entire Affordable Care Act, or if it strikes down those parts of the act that prevent discrimination based on preexisting conditions -- the "community rating" and "guaranteed issue" provisions. Most of the public will not care much about the expansion of Medicaid or other aspects of the act that benefit the poor, because most of the country does not directly benefit from them. But the community rating and guaranteed issue rules will help many middle-class families and, not surprisingly, they are especially popular.

Next, Obama will have to weave a narrative that shows that the Court is out of touch with the values of most Americans and that connects the Court's conservative decisions to the views of Obama's most unpopular and ideologically extreme political opponents.

Obama will have to explain why the same logic that protected unlimited corporate expenditures in Citizens United also underlies a decision to strike down the Affordable Care Act. In both decisions, he must argue, the Court has given corporations and the wealthy too much power. In Citizens United the Court has given these groups too much control over the political process, corrupting American democracy. In the health-care case the Court has made it impossible for the middle class to protect itself from overreaching by health insurers.

But that is not all. Obama will also have to explain why these decisions are connected to a Republican politics that repeatedly benefits the wealthy and powerful at the expense of the middle class and American workers. He will have to explain how the ideological blinders that produced these Supreme Court decisions are just another aspect of a conservatism gone haywire -- how they are part of a bigger picture that includes the Tea Party's extremist demands during the debt ceiling crisis of 2011 and the more draconian elements of the Ryan budget. If Obama wants to employ the Supreme Court in the fall campaign, the Court cannot be the central player. Its decisions must merely be examples of a larger problem with contemporary conservatism, just as Nixon argued that the Warren Court's decisions were a symptom of a liberalism that had run amok.

Finally, Obama must pledge to appoint new justices who will correctly interpret the Constitution, and who will restore the Court's proper role in reviewing ordinary social and economic legislation. He should explain that this is not the first time the Supreme Court has lost its way. During the Lochner era, which ran from the Gilded Age through the Great Depression, the Supreme Court struck down progressive legislation out of misguided ideas about freedom and federalism. The era gets its name from the Court's 1905 decision in Lochner v. New York, which held unconstitutional a maximum-hours law for bakers. The Lochner period ended as a result of Franklin Roosevelt's appointments, and much of the Court's jurisprudence from that era is now discredited. Regrettably, the current justices have failed to learn these lessons from our past. Obama should promise that if he is reelected, he will appoint new justices who will restore the Constitution and will redeem it from conservative ideologues who, once again, have mistaken their political preferences for what the Constitution truly means.

There is no guarantee that any these strategies will succeed. But history shows them to be a far better approach than a direct assault. Instead of running against the Court, it is almost always better for presidents to run around it.

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Jack M. Balkin is Knight Professor of Constitutional Law and the First Amendment at Yale Law School, and the founder and director of Yale's Information Society Project, an interdisciplinary center that studies law and new information technologies. More

Professor Balkin is a member of the American Academy of Arts and Sciences, and the author of over a hundred articles in different fields including constitutional theory, Internet law, freedom of speech, reproductive rights, legal philosophy, and social theory. He writes political and legal commentary at Balkinization. His books include Living Originalism; Constitutional Redemption; The Constitution in 2020 (with Reva Siegel); The State of Play: Law Games and Virtual Worlds (with Beth Noveck); Cybercrime: Digital Cops in a Networked Environment (with James Grimmelmann et al.); Cultural Software: A Theory of Ideology; The Laws of Change: I Ching and the Philosophy of Life; What Brown v. Board of Education Should Have Said; and What Roe v. Wade Should Have Said.

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