Just because its justices are not elected doesn't mean they're not political. It's time for some public accountability.
Recently, there has been considerable debate over whether President Obama should run against the Supreme Court as part of his reelection campaign. High-ranking Democratic Rep. James Clyburn has endorsed the idea, and Obama himself has seemed to test the waters with anticipatory criticism of a decision striking down his health-care law as unconstitutional.
But there's a strong case to be made that Obama should run against the Supreme Court however the health-care case turns out, and that his campaign should begin that effort today. He should run, specifically, against the five justices on the Court who span the spectrum from conservative to very conservative: Anthony Kennedy, John Roberts, Antonin Scalia, Clarence Thomas, and Samuel Alito.
There are two prominent objections to running against the court. But a closer looks shows why they should carry less weight than they now do.
The first objection is purely strategic. According to this line of thinking, Obama would be making a strategic error in picking the fight with the court because of its standing and popularity, or because the clash would inevitably be so divisive it couldn't but diminish him. The court's approval rating (46 percent a few months ago) rivals President Obama's (48 percent) own and far exceeds that of Congress (12 percent), which passed the health-care law.
But the Supreme Court's numbers are fairly soft. Indeed, in 2010, two thirds of Americans couldn't name a single justice. Everyone looks good before a campaign -- as Rick Perry's pre-campaign popularity shows -- and the court is especially vulnerable because the American public knows so little about it. A series of speeches by Obama and surrogates could "introduce" the justices to the public, warts and all. Millions of dollars of attack ads funded by liberal super PACs would likely take down the approval ratings of the five conservative justices and ratchet up their negatives. Indeed, the Court's approval already has dropped 15 percent over the past decade as it became increasingly conservative and political. And Obama has a tool for minimizing his strategic risk -- uncoordinated super PACs made possible, ironically, through this court's Citizens United decision and other rulings. His supporters could fund the negative attack ads undermining the court's support and Obama, like other candidates, would have plausible deniability.
The second and major objection is more about propriety: that the president should not attack the court. The reasoning here is that the court should be seen as apolitical (somehow "above" democratic politics) or simply accorded respect as the institution to which we entrust the final say on the Constitution. Under either reasoning, this objection is off-base.
As a general rule, political institutions are fair game in political debates in a democracy. Nothing is more fair game, in fact, than political matters of public concern. If the court is a political institution making important political decisions, then the public should debate the politics of Supreme Court decisions. If the public can debate those politics, of course, so can elected officials -- and they have long done so.
But is the court political? Yes. Politics affects how justices are selected (by the elected president) and confirmed (by the elected Senate), and the justices' political ideologies affect their votes and reasoning. The Supreme Court is not applying neutral, non-political rules. If it were, there would be no 5-4 splits between the conservatives and the liberals on the court. There would be no Bush v. Gore.
There would also be no Citizens United where the Court decided 5-4 that Congress could not limit corporations' "speech" rights to spend unlimited sums buying elections. And the arguments in the health-care case would not have been four robed men who "seemed to adopt the Tea Party slogans" (in the words of Ronald Reagan's solicitor general). (The fifth conservative, Justice Thomas, remained characteristically silent.)
The court is also political fair game because the court's 5-4 decisions, like other "political" decisions by government officials in a democracy, have had such a profound impact on the lives of Americans. Bush v. Gore gave us a president who lost the popular vote, eventually appointed two more justices, and led us into a war of choice while failing to regulate a financial system dependent on toxic mortgage-backed derivatives. In Bush v. Gore, five justices had a partisan outcome in mind and then made up the judicial principle to justify it, while claiming that the decision would not be precedent for any future cases. If the five most conservative justices currently on the court strike down the health-care law's individual mandate, the law as a whole would likely be scrapped. That means that people with pre-existing conditions would not be able to get health care because of the court. Millions of young people cannot stay on their parents' health insurance until the age of 26. For millions more, getting sick will mean going bankrupt. These five justices would affect the health care of millions of people, men and women. They cannot change people's lives, "take away their health care," and then expect nobody to criticize them. In fact, we all know that many justices will expect some people -- opponents of universal health care -- to celebrate them politically. The five men would have their political defenders; they should also have their critics.
The court is political for a simple but fundamental reason: it sets the rules of our politics. The Supreme Court is likely most to blame for why we hate Congress so much.
Finally, the court is political for a simple but fundamental reason: it sets the rules of our politics. The Supreme Court is likely most to blame for why we hate Congress so much. The Supreme Court has handed down decisions -- Citizens United along with other cases -- empowering billionaires to spend unlimited sums on congressional campaign attack ads. Steven Colbert can make our campaign finance laws a running joke on his show merely by having a top election lawyer accurately explain the laws (and win a Peabody Award for it). Partly because of these decisions, today, in polls, nearly half of Americans believe that most congressmen are "corrupt" -- not a light accusation. For hours every day, our senators and congressmen telephone billionaires begging for money -- they may be "Senators by day," as NPR recently explained, but they are "moonlighting as telemarketers." Those same senators and congressmen bailed out, instead of jailed, the wealthy bankers who turned our financial system into a mortgage-backed Ponzi scheme.
Meanwhile, unemployment remains high and our decades-old challenges -- education, infrastructure, environment, poverty, and homelessness -- remain. The court's aggressive role structuring our campaign-financing system has made congressmen dependent on the donors and billionaires, rather than dependent on the people alone. The court is also partly to blame for our broader electoral problems, beyond financing. Its decisions set the rules generally for the operation of democracy -- including for partisan and racial redistricting cases, decisions about voting in primaries, third parties, and so on. With all these judicial decisions, James Raskin argued in a book several years back, that the recent, conservative Supreme Court has been an anti-democratic force "overruling democracy."
Even though the disapproval ratings of both Congress and the Supreme Court's Citizens United case hover at 80 percent, the Supreme Court is not nearly as unpopular as Congress or Citizens United. Disliking Congress but liking the justices is like hating the a drug addict but liking the pusher who got that person addicted in the first place -- and who gets in the way of rehab. It is the Supreme Court's decisions that got Congress addicted to money, and when Congress tried to solve that problem with new laws, it was the Supreme Court that got in the way struck down the laws. If Obama makes that case, he could make the court as unpopular as Congress. He could argue that the justices should be as disliked as lobbyists.
Indeed, running against the Supreme Court is perhaps the best way to place campaign finance on the agenda for the election and focus blame on the Court, not the Congress whose laws were struck down in Citizens United. That case is deeply unpopular and helped ignite the Occupy movement. It has resulted in a culture of a very few millionaires and billionaires funding supposedly independent super PACs and relentlessly running negative ads.
Some, like Harvard's Larry Lessig, look at Citizens United and issue a call to Fix Congress First. But, because of the Court's decisions, we cannot fix Congress without fixing the Supreme Court. Every proposal to address our electoral system runs into the roadblock of the Supreme Court five. That issue should be subject to public debate.
Finally, as a matter of propriety, the members of the court are not due some extra-special respect and immunity from criticism. Just ask the conservatives who relentlessly attack the court regarding the rights of accused criminals and of women regarding their reproductive health. This is a democracy; we are encouraged to criticize our politicians (even unelected, appointed politicians). And we can criticize them with emotion.
Both the American public and elected officials should not be afraid of subjecting the Supreme Court -- a decidedly political institution -- to the same political arguments and passions to which we subject the rest of Washington, D.C.
Obama should not shy away from the debate.