Make This Election About the Court

With last week’s arguments safely behind us, President Obama has taken the first steps towards spinning the case, saying:

Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law what was a strong majority of a Democratically elected Congress.

I’d just remind conservative commentators that for years all we’ve heard is that the biggest problem is judicial activism or a lack of judicial restraint. That an unelected group of people would somehow overturn a duly constituted and passed law. Well, here’s a good example.

Naturally, right-leaning sites are reporting and commenting on only the first paragraph, to paint the President as an out-of-touch hypocrite, unable to draw the distinction between good “activism” (Boumediene on CSRTs) and bad “activism” (ObamaCare). This is a line of attack the President can avoid — even though he shows no signs of taking any steps to avoid it — by making this election about first the members of the Court, and not its powers.

A decision invalidating the individual mandate would be unprecedented, but not for the reasons President Obama identifies. It would be unprecented as the very first time, ever, that the Supreme Court invalidated a congressional attempt to regulate an economic market under the Commerce Clause. Ever. It would also represent the first time since the New Deal that the Court stood directly toe-to-toe with a President over the centerpiece of his domestic agenda. That didn’t end so well for the Court last time — President Franklin Roosevelt waged an unrelenting war on the Court’s legitimacy, leading them to ultimately repudiate a vision of the Due Process Clause that barred even workplace safety rules — and it’s time for President Obama to take a page from that book.

With decision after decision in the last few years, the Court has managed to tip so far to the right as to steadily erode its legitimacy as an apolitical actor. D.C. v. Heller — which “found” for the first time a constitutional right to bear arms — was probably legally correct, but still a bolt from the blueCitizens United wrote Mitt Romney’s laugh line (“Corporations are people, my friend!”) into the U.S. Reporter, surprised legal commentators, garnered stern presidential rebuke, sparked Occupy Wall Street, and launched a prolonged campaign of public ridicule. And just yesterday, the Court held that police may constitutionally conduct strip searches for any offense. I don’t actually know the law on that last bit, but (momentary conservative doublethink notwithstanding), Fourth Amendment freedom from absurd search protocols seems to have, magically, become a valence issue, adored by both right and left. What I’m getting at is, if the Court were trying to alienate voters, they could hardly do a better job of it.

President Obama’s challenge is to channel that outrage, through an issue where public polling is considerably murkier, into generalized bipartisan concern for the Supreme Court’s doctrinal dalliances. He needs to paint any adverse ObamaCare decision — or any thin margin on a decision upholding the Act — as a sign that, regardless of what anyone thinks about the constitutionality of the mandate itself, the Court has become unhinged from constitutional reality, and simply started handing down decisions based on the members’ political preferences. ThinkProgress has the right idea; and we might also note Justice Thomas’ wife’s heavy involvement with the Tea Party. This is a message that can work, if carefully crafted and skillfully deployed. But over the course of the past three years, that’s a combination this White House hasn’t managed to pull off, ever.


  1. Two things:
    1) I think you’re missing an “about” in your first paragraph when you say “by making this election first the members Court, and not its powers.”
    2) It seems to me (which is philosopher-speak for “I think”, of course) that you’re overestimating the political savvy of the voting public. Were everyone engaged and informed, yes, you’d be right: making the Presidential election about the makeup of SCOTUS would likely be a winning strategy — but, alas, we work with what we’re given, and… well… most people are pretty much happily ignorant morons who couldn’t political their way out of a wet paper sack. And yes, I just verbed “political”. It weirds language, but hey, it works pretty well.

    1. I make a habit of not disagreeing with people who expertly quote Calvin and Hobbes.

      1. In that case, (and I’m very happy that the reference was picked up) you should also note that it probably ought to be “members of the court”…

        Also, I’ll be over here with my transmogrifier if you need anything, you know, transmogrified.

  2. I read a ruling once that the judge started by quoting Calvin’s entire report about bats. I think it was a case about the ESA and bats.

    On-topic discussion later. A preview: for various reasons you are wrong.

    1. BATS! The big bug scourge of the skies!


    Ok, now that that’s out of the way and we’re not on my lunch break anymore and I’m home from work…

    Marius, I’m going to try not to rehash old philosophy of law arguments we’ve had here before about whether or not the “human element” should get any acknowledgment or consideration from a court (no) or whether “, but still a bolt from the blue” matters when it follows “legally correct” (also no), but there’s several things about your post that I believe are either analytical statements that contradict your analysis in other posts or are factual misstatements that are surprising coming from someone as intelligent and well-educated as we both know you are.

    First, and biggest: I think your thesis, that organized political attacks on the judiciary are a good thing and that FDR’s successful political maneuvering to make the SCOTUS change its rulings for non-jurisprudential reasons neither briefed nor argued in court is something to be emulated rather than condemned (it was jury tampering at the appellate level) is pretty much impossible to square with The very essence of the Court’s countermajoritarian role is that elections alone are inadequate safeguards on popular liberty.

    Second, while I admit I haven’t read the Bond decision yet, my understanding is that it was a ruling not on police generally but on jailers specifically (and according to the concurrence, only when the jailed are going into the general population). It may not be as narrow as I’m presenting it, but I’m pretty sure it’s not as broad as you present it (which I read as presenting “the police may now constitutionally strip search you during a Terry Stop” as a true statement). That sort of nuance matters. Likewise, Citizens United didn’t hold that “corporations are people”, but you present that misrepresentation (or at least gross oversimplification) as true. Nuance matters. You know that, Member of the 7th Circuit Bar!

    Second point probably doesn’t matter, though, because Erik is right: most people are pretty much happily ignorant morons who couldn’t political their way out of a wet paper sack.

    1. Shit, Florence. I haven’t read Florence. Bond is the weird “individual standing to make a 10th Amendment challenge to the Treaty Power” case I have read.

    2. Oh, I acknowledge that Bond, Citizens United, and most things are more complicated than I’m making them in this post. But I think the descriptions above accurately reflect what these cases have come to mean in the public consciousness (and Florence, the strip search case, is close enough: it holds you can be strip-searched when brought to jail even for nonindictable offenses, which while a far cry from being searched at the subway gates, is still pretty bad). That makes this post more about propaganda than legal reality. This might raise the more important question of, is it ok to mislead the public with simplistic summations of Supreme Court cases, that gists the political issue without fully explaining the legal one? I would say yes…. to a point…. which is what I’m doing here.

      1. I would say no, it’s not ok to mislead the public with simplistic summations of Supreme Court cases that get the political issue without fully explaining the legal one. I believe going that route separates your political decisions from a basis in reality. No good can come from that: look what damage continues to get done because the holding in Engel v. Vitale has been successfully misrepresented as “prayer is forbidden in public schools” instead of “public schools are forbidden to make students pray”. Decisions based on other-than-correct (inaccurate, incomplete, etc.) information are only ever good decisions by luck. Propaganda about SCOTUS Constitutional rulings spreads other-than-correct information. That endangers the quality of decisions in all sorts of arenas: party and amicus briefings, subordinate court rulings, laws passed in response to the “ruling”, nomination and confirmation decisions, political organization fundraising, what causes get grassroots activism dedicated to them… so many things that can be mucked up by misinformation that sticks.

        Not to mention the long-term damage that attacking a ruling’s legitimacy on out-of-court reasons can do. Suppose Obama does what you suggest and succeeds. Set aside that being a juvenile assclown by even making the attempt does to the Presidency’s own legitimacy (I have about as much respect for The Executive sniping at the Judiciary in public as I do for the 5th Circuit’s antics yesterday, which is none… and as a completely unrelated aside, why do lawyers’ and journalists’ codes of ethics allow prosecutors to obtain guilty verdicts in the court of public opinion before they even start the trial in the court of law?), if he tries and succeeds now the Supreme Court of the United States, and by extension all the Circuit and District Courts, has no institutional legitimacy. Now Mr. Roberts can make his decision and try to enforce it… and so can Mr. Easterbrook, Mr. Sentelle, Ms. Lynch, Mr. Jones III… And isn’t that just hunky-dory for the rule of law?

        “The Supreme Court’s ruling yesterday overturning the Patient Protection and Affordable Care Act, though regrettable due to its consequences, was a legitimate exercise of judicial review and firmly grounded in our Constitution’s text. As this ruling demonstrates, that text is antiquated and does not delegate to our National Government the powers it needs to effectively and comprehensively address all problems of national scope. Fortunately, our Founders foresaw that their efforts to shape our nation would need to be built upon by their descendents and that over time the Constitution would need updates to meet the needs of future generations. It is for that reason they gave us a mechanism to amend the Constitution, and today I call upon all the members of Congress to come together and submit to the American people an Amendment that will enable us to ensure every American has access to healthcare.”

        That’s a speech it would be appropriate for Obama to make if the mandate’s overturned (and not severed, I guess, given the opening sentence). A speech that calls the Court unhinged would not be.

        That’s the thing: “constitutional” and “unconstitutional” aren’t synonyms for “good” and “bad” and they aren’t synonyms for “beneficial” and “harmful”. They’re synonyms for “allowed right now” and “not allowed right now”. That’s all. Something that would be good and beneficial’s not allowed right now? No big deal: we can change the rules. Shouldn’t be doing it until those rules get changed, though.

        1. This is not unpersuasive. You know I like high-minded affirmations of the Court’s independence :). But what about a sufficiently narrow attack on not the Court’s power, but the Justices’ surrender to politics? Like, make it an argument about how the court should be apolitical, but isn’t; and how the American people deserve a president who will remove the taint of radical right-wing judicial theory from the bench. Affirm the court, affirm its power, but set a baseline of what the law used to be, and explain how *this* court isn’t enforcing it.

          1. Sorry, I just now got the comment notifications for this post, so this comes late.

            That said: your proposed argument cuts both ways; it’s (almost certainly) even easier for the Right to rail against “leftist” (read: communist) Justices than it is for the frankly anemic Left to make a case based on actual facts. I say this because, well, the facts have been around for a few years now (almost 40!) and the Left hasn’t been able to do anything with them. Of course, I’m not a law-talking-guy, but in the court of public opinion the sort of fight you’re imagining here is, to borrow your preferred milieu, more Paullus and Varro at Cannae than Scipio at Zama. (I’m too lazy to check: it was Paullus and Varro, right?)

            (And yes, I love parenthetical comments. It’s a thing.)

  4. Fuck, the 5th Circuit is not helping my case… rise above it, dipshits. Rise above it.

    1. Haha, right?

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