Well Obama up and stuck his foot in his mouth once again. This past week he dared to criticize the Supreme Court's authority to overturn the will of elected representatives of Congress. Or did he?
So much uproar has resulted from the President's response to a question put to him during a press conference with Mexican President Felipe Calderon. Mitt Romney responded by questioning Obama's knowledge of the Court's history. Senate minority leader, Mitch McConnell, stated the president's criticisms were unprecedented, advising the President to “back off”, apparently forgetting his own criticism of a 2003 campaign finance reform decision. And as if to top the whole controversy off, Judge Jerry Smith of the 5th Circuit Court of Appeals rebuked the administration by assigning homework for the President and Eric Holder to detail out in a 3 page, double-spaced paper their understanding of judicial authority.
Now presidential criticism of the Court is nothing new. From the very beginnings of the republic, presidents have offered up choice words for Supreme Court decisions the disagreed with. In response to the Marbury v. Madison decision – the basis for judicial review in the this country – Thomas Jefferson stated the ruling was "placing us under the despotism of an oligarchy."
Andrew Jackson, in his refusal to enforce the Court's Worcester v. Georgia decision, which stated the Cherokee could not be removed from their lands, confide to Brigadier General John Coffee that, "The decision of the supreme court has fell still born, and they find that it cannot coerce Georgia to yield to its mandate“.
In 1858, then US Senate candidate, Abraham Lincoln, criticized the implications of the Dred Scott case in his “House Divided” speech in which he wondered what were the limits to a slave master's within a free state.
After numerous rulings against New Deal legislation, FDR threatened to “pack the court” with judges more favorable to his programs for economic recovery. Questioning the mental capacity of 1937's aging justices by reasoning some judges like all men may retain their physical and mental vigor but, “Those not so fortunate are often unable to perceive their own infirmities. . .[which] leads men to avoid an examination of complicated and changed conditions. Little by little, new facts become blurred through old glasses fitted, as it were, for the needs of another generation; older men cease to explore or inquire into the present or the future.”
Nixon, during his presidential campaign, strongly opposed the Miranda v. Arizona ruling and promised as president he would appoint judges who would be “strict constitutionalists” and exercise judicial restraint.
Reagan, speaking of the qualities he envisioned for his Supreme Court nominees, offered a virtual affirmation of President Obama's comments when he stated, “In our democracy, it is the elected representatives of the people, not unelected judges, who make laws. He or she will share my belief in judicial restraint.”
In comparison, President Obama's statements do not appear all that controversial. Upon closer inspection, his comments are not so much of an attack on the Court but a judgment of the current situation. While he clarified his “unprecedented” statement later, narrowing the scope to the court overturning economic legislation, it is also quite possible he felt overturning the entire law would be unprecedented. Much of the argument over its constitutionality involves the individual mandate. There is little else in the law that is questionable and overturning the bill in its entirety would indeed be unprecedented. If the reform is rendered effectively impotent without the mandate then that is a matter for legislators to address, not the courts.
“And I’d just remind conservative commentators that for years what we’ve heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint — that an unelected group of people would somehow overturn a duly constituted and passed law.”
This final portion of his comments were construed by many as a rebuke of the Robert's Court relating it to an activist court. One could argue this was merely a situational judgment. The President was directing his critique at conservative commentators who for years have maligned decisions against their positions as judicial activism.
Yet, now in this case, they are silent, hoping the Court will, this time, rule in their favor in what may well be a party line 5-4 vote. There are no accusations of potential legislation from the bench in this case. When Justice Scalia asked, “Mr. Kneedler, what happened to the Eighth Amendment? You really want us to go through these 2,700 pages?”, comparing the chore of reading the full bill as cruel and unusual punishment, there was no speculation of possible bias or predetermined conclusions. There were no questions raised by Mitch McConnell, who in 2009 lectured to a group of graduating law students, “Suppose you happen to have, objectively, a very good case under the law. What fairness can you expect if the judge was appointed based on the ability to “empathize” with the opposing party?”. McConnell questioned judges' empathy yet has yet to ponder the apparent preconceived views evident in Justice Scalia's questions.
One would think, Supreme Court justices would recognize the need to read the very piece of legislation they were called upon to render an accurate and fair ruling. Yet, as the President eludes to, that usually boisterous theater section is curiously quiet in this particular case. Rather than an attack on the Courts, this was Obama was pointing to the hypocrisy in media commentary.
Beyond the President's comments, their potential meaning and the competing accusations, there is, however, another change in the wind here. For many years, conservatives have derided the judiciary for the long list of rulings which ran counter to their views. From decisions legalizing abortion to banning prayer in schools, conservatives' trust in the higher courts was minimal. But as the highest court in the land stood witness to the appointments of Justices Scalia, Thomas, Alito, Kennedy and Chief Justice Roberts the court's composition has tilted to the Right. In recent years, conservatives' long-held judiciary skepticism appears to be abating, a result of such favorable rulings as Bush v Gore, various workplace decisions in 2001, and more recently Walmart v Dukes, Citizens United v FEC and Florence v. County of Burlington. These decisions offer hope to those eagerly awaiting a ruling against the Affordable Care Act.
Should the conservative leaning court overturn the health care reform's individual mandate, the primary provision in question, it could bring about challenges to other programs and laws long-targeted by conservative groups. As the Republican Party has shifted farther to the Right, the country has seen a significant increase in anti-abortion legislation, anti-contraception bills, strict immigrations laws and a trend towards limiting labor union activities. In light of these recent efforts by newly elected, far-right representatives, a ruling against the individual mandate may provide a green light for high court challenges to Roe v Wade, the constitutionality of Medicare, Medicaid, Social Security and federal income tax. Additionally, it could , as one writer speculated, call into question the federal government's ability to regulate commerce activities, and enforce environmental and consumer protection laws.
Across the political spectrum, predictions about the outcome of this case are as varied as the ideological beliefs in which they are based. Whichever direction the Court takes this decision will be a far-reaching, landmark ruling destined to determine how the federal government operates into the foreseeable future, the implications of which will impact many across the country.