The Republican presidential candidate once worried about "judicial activism," but now "judicial review" is the buzzword for Obama's opponents.
Mitt Romney gave a speech to the National Rifle Association on Friday in which he barely mentioned guns or the Second Amendment. Instead, it was a paean to "freedom" -- the precious promise of the American Dream -- under threat, naturally, from the president's zeal for things like taxes and regulation.
These days, there's a new figure in Romney's freedom-loving pantheon: the Supreme Court. Just as Obama has laid the groundwork to run against the Court in anticipation of a possible adverse verdict on his signature health-care legislation, Romney is setting himself up as the Court's best friend in hopes of the same outcome.
"Obamacare violates the Constitution. I'm counting on the Supreme Court to say exactly that," Romney said, before launching into an anecdote about a couple of small business owners in Idaho who were delivered from persecution at the hands of the Environmental Protection Agency by a unanimous Supreme Court ruling in their favor. "The Supreme Court ruled unanimously for the Sacketts and against the Obama EPA -- just like they should," Romney said.
Obama, Romney contended, "has an unusual view of the Supreme Court and its responsibilities." He cited the president's statement he was "confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress."
"Of course, what President Obama calls 'extraordinary' and 'unprecedented,' the rest of us recognize as 'judicial review,'" Romney added. "That concept has been a centerpiece of our constitutional system since 1803. Judicial review requires that the Supreme Court strike down any law that violates the Constitution .... But President Obama seems to believe that court decisions are only legitimate when they rule in his favor, and they're illegitimate if they don't. He thinks our nation's highest court is to be revered and respected -- as long as it remains faithful to the original intent of Barack Obama."
A Republican praising judicial review, and egging on the court to throw out laws, is something of a departure. Romney's 2008 presidential campaign, for example, was more concerned with "preventing judicial activism" -- the headline of a November 2007 campaign press release -- than making sure the high court exercised its powers of congressional oversight. In another press release, from October of that year, Romney said: "As president, I intend to nominate judges who respect the separation of powers, are committed to judicial restraint, and have a genuine appreciation of the text, structure, and history of our Constitution."
These positions aren't in conflict -- judicial restraint and judicial review are both legitimate pillars of high-court jurisprudence -- but they do represent a difference in emphasis. The fact that Romney is now stressing the latter is a signal that he's getting ready, just as Obama is, for a general-election argument over the Court, its much-anticipated verdict, and its proper role.
It goes without saying that Romney's critique cuts both ways -- that both parties are big fans of the Court when it does things they like, and critics when it rules against them. Conservatives were no fans of the Supreme Court when it ruled in Roe vs. Wade, restricted public display of the Ten Commandments and signed off on affirmative action; even before it held unexpectedly hostile hearings on Obamacare, liberals had cooled on today's conservative-majority high court for things like throwing out a Washington, D.C., gun-control law and overturning campaign-finance reform in Citizens United.
The Court is not a wildly popular institution. A Gallup poll conducted last fall put its approval rating at 46 percent, with 40 percent disapproving. But Supreme Court nominations are one of the few major, lasting impacts over which a president has total control, and as such they're a powerful tool for rallying both party bases. Indeed, Romney was preceded on the NRA's stage in St. Louis by the organization's top lobbyist, Chris Cox, who spoke about the necessity of defeating Obama to ensure that more conservative justices can be appointed. Given Obama's relative gun-friendliness in policy terms, it's pro-gun conservatives' strongest talking point against him at this point -- especially considering that Romney, their soon-to-be-nominee, has a history of moderation on their issues. "I don't see eye-to-eye with the NRA on every issue," he said in 2007, noting he'd supported the assault-weapons ban.
As Romney seeks to quickly mend fences with the Republican base so that he can turn to the general election, the Supreme Court card may become one of his strongest plays. With the outcome of the Obamacare case in limbo until the verdict comes down in June, it's also a bit of a risk. But the battle lines are clearly drawn on both sides.
"In his first term, we've seen the president try to browbeat the Supreme Court," Romney said Friday. "In a second term, he would remake it. Our freedoms would be in the hands of an Obama court not just for four years, but for the next 40. We must not let that happen."