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Go Home Don’t Campaign Against the Supreme Court, Mr. President

POLITICS APRIL 5, 2012

Don’t Campaign Against the Supreme Court, Mr. President

BY WILLIAM GALSTON

If the Supreme Court overturns key provisions of the Affordable Care Act, it will precipitate the largest confrontation between the Court and a president since the mid-1930s. Yes, the Court prevented Truman from seizing the steel mills and forced Nixon to give up the tapes. But in those instances the decision ended the controversy because the President chose not to prolong it.

Not so this time: President Obama has signaled his intention to make the Court a central issue in the fall campaign if it guts his signature policy achievement. Although this may be a shrewd short-term political calculation, it raises troubling questions about a president’s broader responsibilities to the constitutional order he is sworn to uphold.

There are good reasons why, if Obamacare is indeed overturned, it would be tempting for the President to mount an all-out attack on the Court in the presidential campaign. First, defeat typically energizes the losers more than victory does the winners. A negative decision by the Court would enrage liberals who have been lukewarm about the ACA and the Obama presidency. And the president would have no trouble channeling this renewed passion toward electoral mobilization.

Second—and more fundamentally—the American people have soured on the Court. Surveys done in the past two years find that three quarters of the respondents believe that justices’ political and ideological views sometimes influence their decisions. The Gallup trend question—“Do you approve or disapprove of the way the Supreme Court is handling its job?”—shows a 15-point decline, from 61 percent to 46 percent, in public approval of the Court since mid-2009. A Kaiser Family Foundation survey released last month found only 23 percent of the people expressing “a great deal” or “quite a lot” of confidence in the Supreme Court, versus 30 percent in the presidency (and only 6 percent in Congress). In other words, the Court is vulnerable to political attack.

But there are times when a president should refrain from exploiting a political opening, and this is one of them. The polarization of our politics has already produced a governance crisis; ours is a political system that finds it increasingly difficult even to perform routine functions, let alone agree on solutions to large problems. The inability to act decisively has gotten so bad, in fact, that it verges on a legitimacy crisis as well. The American people have withdrawn their trust from nearly all our governing institutions, and most believe that the government officially based on “We the people” responds instead to a myriad of narrow special interests.

An all-out attack by Obama on the Court, and its institutional role in American public life, would only make things worse—especially if it is framed in terms appropriated from his adversaries. On Monday, the President echoed conservatives’ long-standing critique of “judicial activism,” referred to the justices as an “unelected group of people,” and characterized the overturning of a law passed by a “democratically elected Congress” as an “unprecedented, extraordinary step.”

The president used to teach constitutional law, so he surely knows better. Although justices are nominated and confirmed by elected officials, the founders deliberately insulated the Court from everyday politics. They are “unelected” so they can do their job without being answerable to transient public sentiment. That is because their job is to judge democratically passed laws against constitutional standards and to serve as guardians of those standards, even when it is unpopular. But since judging requires judgment—since it is not mechanical—it is inherently controversial. One person’s judicial activism is another’s constitutional fidelity.

So if the Court does invalidate the individual mandate, Obama should take the conversation in a different direction. He should seize the opportunity to place this constitutional controversy in a broader context—to remind the American people that the substantive political agenda that conservatives are proposing is that of a return to the pre-New Deal era. This is as true of Republicans in Congress, who want to dismantle the welfare state, as it is of the “originalists” in the Supreme Court, who want to abandon the interpretation of the Commerce Clause that became a consensus after 1936 and made possible many of the programs Americans now cherish and take for granted. The 2012 election, he could argue, is a choice not just between two budgets or even two social philosophies, but also between a conception of government adequate to address the problems we face today and a conception that faces backward, not forward. Obama can pay deference to the Court’s prerogative to challenge legislation while attacking the vision of jurisprudence that is currently motivating its interventions.

I sincerely hope that it doesn’t come to this. In my previous column, I urged John Roberts to adopt a view of his role as chief justice that is informed by his responsibility for the legitimacy of the institution over which he presides. Especially in the context of the past decade, another decision split 5-to-4 along ideological lines might well convince the American people that their aspiration for a Court above normal politics is hopelessly naïve. But if that decision comes to pass, it is the president’s responsibility to minimize the damage by speaking to the people’s hopes rather than their fears, to their patriotism rather than their anger. That’s what Obama at his best has always done. And that’s why he was elected.

William Galston is a senior fellow at the Brookings Institution and a contributing editor for The New Republic.

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64 comments

Typical malarkey from Galston, third grade civics completely at odds with the reality that conservative designs on the court have created. The conservatives can debase the court at will and the rest of us are not supposed to notice, just keep on pretending that the court resembles the childish description given us by Galston. The solution to our problems lies first in recognizing the reality of our situation. Galston's specialty is fantasy, fantasy economics, fantasy politics, and now fantasy civics.

- roidubouloi

April 5, 2012 at 12:22am

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Please campaign against the Supreme Court. Make it apparent to the people that this election is about keeping the economy improving for the 99% and denying Republicans their dream of a supermajority on the Supreme Court to, among other things, continue prostrating the laws of the nation in favour of corporations and overturn political and legal issues that have been settled for decades. There are so many things that a sixth ultra-conservative on the bench would do it is scary. In a world where John Roberts and Antonin Scalia are your go-to swing justices, DC v. Heller (the Dred Scott of gun cases), Bush v. Gore (an express decision contrary to the facts on the ground and how someone with common sense would have settled something too close to call), Citizens United (a textbook example of an activist ruling as it went beyond the merits of the case), and the impending ACA decision are the least of our problems. If you doubt me, read a Thomas dissent. Even in the 1990s he was taking originalism to new lows and announcing his contention that most of what the government does today is unconstitutional and should be declared as so.

- chaitless

April 5, 2012 at 1:07am

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Having now read the piece, it's tempting that Obama should avoid politicizing the Supreme Court. Of course, that betrays what roid correctly notes is a fair bit of fantasy. The conservative movement within the Republican Party has been campaigning against the liberal activist court since well before Roe v. Wade. In fact, not only do many Republican candidates pussyfoot around having litmus tests for their potential nominees, they openly talk of appointing conservative justices in order to overturn that ruling. It has obviously had some effect in the intervening decades. To say nothing of the politicization of the Justice Department under Bush and the fierce peopling of the lower courts with strong conservatives. The entire notion that since the early Berger Court every new justice has been more conservative than the one he or she replaced (save perhaps for Sotomayor) shows that at least one half of the American political scene has been engaged in trench warfare with the notion of impartial, apolitical justice. Just to make it more obvious, though, we also have the sheer fact that Republicans have actually stonewalled many of Obama's mainstream nominees for the district and appeals courts in order to try to prevent Bush's assault from being turned back ever so slightly. And this is to say nothing of the clusterbombing awaiting us if Obama gets the chance to replace one of the five conservatives on the Supreme Court.

- chaitless

April 5, 2012 at 1:26am

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Don't those on the Court have the same obligation to show respect for Obama and his administration, something several did not do last week, that even a Republican former solicitor general was moved to write a highly critical comment. Of course, there are those on the Court who have a history of disrespect and condescension for those who would disagree with them. If they are offended by Obama's comments, they should "get over it". I understand Galston's point, but why should Obama play the role of the appeaser, the Neville Chamberlain of the American culture war. And it is a war; and you can rest assured that Obama's adversaries, on the Court and in Congress, have no intention of being appeasers. Besides, whatever nasty things Obama may say about the Court, it will pale in comparison to what Mr. Jefferson said; and I do recall that Mr. Jefferson is remembered as a patriot.

- rayward

April 5, 2012 at 1:27am

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I second what Roi said (Chaitless's comment is good, too). Why does anyone bother to publish Galston's fatuous fantasies of unilateral disarmamant?

- Curran1

April 5, 2012 at 1:27am

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roid nailed it, and the rest of you are right as well. What a naive post by Galston. Is this blather the best the Brookings Institution can produce?

- Thunderroad

April 5, 2012 at 2:10am

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"But there are times when a president should refrain from exploiting a political opening, and this is one of them. The polarization of our politics has already produced a governance crisis; ours is a political system that finds it increasingly difficult even to perform routine functions, let alone agree on solutions to large problems." What a load of horseshit! The polarization of our system is a fact entirely independent of anything the president does or does not do. The polarization of our system is a direct result of the right wing minority's pursuit of power at any cost and its willingness to sabotage functioning democratic government in pursuit of its own parochial interests. It is the case that the conservative majority on the Court subverted democracy in 2000 and in addition to artificially perpetuating its stranglehold on the Court, served us an unnecessary war, a ballooning budget deficit, and an economic crisis that was far deeper and more prolonged than it need have been. If on a whim this same illegitimate majority should overturn the president's signature achievement, a clear boon to the people, and if the president were to defer to their whim, then we might have peace but we would hardly have a functioning democracy.

- AaronW

April 5, 2012 at 6:14am

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Absolute lamb-to-the-slaughter bull puckey from top to bottom.

- WandreyCer

April 5, 2012 at 6:59am

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Roid writes: "The solution to our problems lies first in recognizing the reality of our situation." The reality of the situation is that you don't like how you think the court will decide, and thus you'll direct your normal hate-for-all-you-disagree-with at them for a spell. All while wrapping it in the flag of judicial activism. In spite of Obama himself having reservations on the legality of this back in 2008/9. Got it.

- seattleeng

April 5, 2012 at 7:00am

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More hilarious projection from seattle. For you to even say the term "judicial activism" is just more mental illness on your part Seattle. I decree: If this Court (with one of the ruling Justices wives running an advocacy organization dedicated to one side, no less) overturns several, make that SEVERAL lower court rulings stating this law is clearly Constitutional - to invalidate a law created by Congress and signed in to law by the President, then any conservative who even says that idiodic phrase must be locked up in stocks for a period of one month. On the front steps the the nearest courthouse.

- WandreyCer

April 5, 2012 at 8:08am

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What a bunch of part time patriots. You guys should be ashamed of yourselves. Galston is right. Go hawk Workers Daily World in Washington Square, will ya?

- Mikelawyr22

April 5, 2012 at 8:57am

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Decisions split 5-to-4 along ideological lines have already convinced thinking American people that their aspiration for THIS COURT to act above normal politics is hopelessly naïve. So it is advisable and perfectly proper according to the founding fathers to IMPEACH the two Justices who have personally (in addition to the efforts of Clarence Thomas’ wife) promoted the self-serving objectives of the mega-rich Koch brothers, et al. I don’t know if impeachment constitutionally permits a thorough investigation of Chief Justice Robert’s contribution to the theft of the 2000 presidential election by Bush and his subsequent activist decisions, but if so I recommend it.

- Weston

April 5, 2012 at 9:08am

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I disagree. Hearing Scalia use Fox News talking points during the hearings was enough for me to feel that this court has discredited itself. Our government mandates all kinds of things--and if the SCOTUS votes this down with a 5-4 margin, I'm going to be pissed. Not to mention the fact that the court recently voted in favor of strip-searching anyone in prison, regardless of the charge.

- maxhencke

April 5, 2012 at 9:20am

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Will we find you there, mikelawyr, peddling Mein Kampf? _________________ Seattle, you are indeed projecting. I don't use the term judicial activism as it is meaningless. I do deplore the fact that Scalia and his claque are outright frauds and liars who do not practice anything recognizable as judging within the tradition of American and common law jurisprudence while mumbling a few words to cover their debasement of jurisprudence. They were chosen for their commitment to reactionary ideology, not law, and that commitment is evident. For anyone on the batshit insane right to complain of political hatred is ludicrous. You invented it. It is the staple of rightwing propaganda, media, and discussion. It is evident even in the questions posed by the reactionary justices in the ACA arguments. Of course, you want the exclusive right to deploy this tool in the political arena because it is that much more effective when everyone else is a political appeaser like Galston. You and yours want the left lying down and babbling third-grade civics while you kick the shit out of us. Got it. Well, "Get over it," as the thug Scalia put it so nicely. You rightwing extremists have been pursuing the political equivalent of total war for a generation already, and it is going to get a lot uglier before it is over. Even Obama, who clearly actually believed in political compromise with the right, has finally caught on to the futility of treating the right as if concern for the welfare of the country were even a consideration for it.

- roidubouloi

April 5, 2012 at 9:28am

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It would not require an intellectually outrageous constitutional law decision to overrule the individual mandate. Respectable arguments have been made by competent lawyers that could persuade reasonable and conscientious justices to rule that way. But if this becomes yet another 5-4 party-line decision in favor of a Republican result, I can think of no reason for Obama to withhold his fire on the Court. We already have a pattern of conduct that informs any observant person what the justices are up to. They are doing it because they can and because nobody can do anything to stop them. While we are at it, maybe we should acknowledge that a pattern of 5-4 party-line decisions in critical political cases indicts the four as much as it does the five, even though the four lose every time. Surely, one of the Democrats on the Court should break the party line from time to time. Let's face it: If Congress is "broken" (and it is), so is the Supreme Court.

- johnIngle

April 5, 2012 at 9:45am

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You heard me, roid. Part. Time. Patriot. We've got this phenomenal Constitution that gives nine unelected dudes the power to tell us what's constitutional and what's not. Usually it's the right wing batshit nutjobs who rain disrespect on a system that has worked so well that . . . well, we ain't #1 fer nuthin'. Yeah, sometimes I hate their decisions too. But I respect the institution because it blows the doors off every other one. If you don't think so, try Holland, where Englishmen are sometimes placed under "administrative arrest" when they land off the ferry prior to a soccer game because, well, they might be up to something.

- Mikelawyr22

April 5, 2012 at 9:54am

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Would you mind, johningle, reprising one of those "respectable arguments" for us? Because I confess I don't know what they are. I find the arguments I have heard for striking down the mandate completely absurd given more than 200 years of American constitutional jurisprudence and a long common law legal tradition a few hundred years older than that. Indeed, I find the arguments against the mandate ludicrous. When an act of Congress, consisting of 545 elected representatives, is to be struck down by a nine-member court, it has been thought until now that the benefit of the doubt goes to constitutionality. There is no reason for the liberals on the court to compromise with that expectation merely to make the reactionaries look good. Brown was a unanimous decision. Roe v Wade was 7-2. None of the Republican appointees who voted with the decision did so for the sake of making liberals look good, and neither of those decisions was about a federal law. They were both affirming the rights of Americans as national citizens against the parochial concerns of states. Is there a liberty interest at stake in the challenge to the mandate? I missed that too. What would it be? The liberty not to pay money to the federal government? The liberty not to be affected by financial incentives and disincentives in the law? The liberty not to pay for things, maybe schools, roads, the military, that one does not want or won't use? Which liberty are we talking about?

- roidubouloi

April 5, 2012 at 9:57am

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Make that 535 representatives.

- roidubouloi

April 5, 2012 at 9:58am

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Ah yes, mike, rightwing respect for our institutions. Are you aware that the power to declare something unconstitutional is found nowhere in the Constitution? It arises because the Constitution is not a how-to manual but a piece of the common law written in a common law context that informs the nature of the job of judging and the ways in which legal arguments can legitimately be deployed for and against something. When the court ceases to engage in common law legal argument, having respect for text, history, and precedent, and simply does whatever the hell a majority wants to do for supra-constitutional, ideological reasons, abandoning the task of rooting its decisions in common law and constitutional jurisprudence, there is no reason why the institution is entitled to respect. While you are touting your Full. Time. Patriotism. consider that the right of a citizen to criticize the government, including its courts, is enshrined in the Constitution. You don't really think much of the Constitution, do you? It is just another version of a flag to wrap yourself in while noisily proclaiming your Full. Time. Patriotism. If you don't like freedom of speech, pal, head for Somalia where you won't have to enjoy any or hear from anyone who does.

- roidubouloi

April 5, 2012 at 10:10am

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I suspect we are forgetting to keep our eye on the ball. What do we want? We want a reasonably fair, effective, efficient health care system. Instead of a camel committee (ACA), we want a single-payer system. What for Obama to run on? Run FOR a real health care system. Run FOR a chance to begin legally restacking the SCOTUS with reasonably fresh and younger justices, including a lesbian atheist and a trans gender while we are at it. (Or at least get some into the judges to prepare for the rest of the century.)

- skahn

April 5, 2012 at 10:11am

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The likely economic failure of the camel committee version is necessary for us to recognize that single-payer is the only solution. It is what it is because of the absurd need to bow constantly to free-market ideology that can never solve the problem.

- roidubouloi

April 5, 2012 at 10:22am

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preach it roi. I have never had a single objection to Republican criticism of Roe vs. Wade (partly because I agree with it, ha) but has Mike labelled critics of the Warren court part time patriots? The reason to go to war with the Court is to highlight the importance of keeping the executive in Democratic hands. Scalia is pretty old already, replacing him with a moderate or even progressive is what the election is going to be about. And it will also mean the liberals who do want to retire can be replaced by another. And it is not like Democrats don't have a ton of ammunition to use against Republicans vis a vis their own quotes railing against judicial activism. The only recourse I have yet seen Republicans use is "ha, serves you right" which is the response of an asshole saying I have no principles that I hold firm to.

- blackton

April 5, 2012 at 10:33am

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As you know, blackton, I think Roe was correctly decided, but I also have no problem with criticism of it that stays within jurisprudential bounds, because the decision did. It may have been wrong or poorly reasoned, or both, but the manner in which it was undertaken was, in my view, still squarely within the boundaries of common law judging. The essence of the decision is that the state has no cognizable interest in the protection of an embryo, while interfering with the autonomy of the mother as to disposition of her own body to do so. Such things as "the sanctity of life" etc. are purely religious and cannot be the basis for constitutional laws. From that point, you have to figure out how the state can have an interest in protecting a near-term fetus at the other end of the spectrum. The court then employed time-honored common law notions of maturing rights, and laches, rights that lapse from failure to exercise them, to devise its tri-partite solution to that problem. If you can explain to me what the state interest in an embryo consists of, without resort to religious justification, I will reconsider my view that Roe is correct. The charge that the Roe court was "activist" is oxymoronic, and I never make that criticism of the conservatives (although I do charge them with hypocrisy on the subject). The court did something, hence it was activist. That explains nothing at all about constitutionality or the reasoning applied. Similarly the charge that "right to an abortion" is not mentioned in the Constitution. That could be said of the subject of almost every single constitutional case ever decided by the Supreme Court. It explains nothing. I am still waiting to hear an argument against the mandate that can be fit within the body of constitutional jurisprudence. My criticism of Scalia and company is that their justifications are completely unmoored from constitutional sources and hence can only be attributed to supra-constitutional ideology. I don't think that can fairly be said of Roe.

- roidubouloi

April 5, 2012 at 11:11am

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I am happy to see the fervent energy of those on our side on display here, but I still think Galston is more right than wrong here. Seeing Obama refuse to fight with the debt ceiling nearly drove me crazy, too, but he appears to be emerging from that comfy professor's study. Maybe it was this thought of Galston. that I especially liked: "Obama can pay deference to the Court’s prerogative to challenge legislation while attacking the vision of jurisprudence that is currently motivating its interventions." (What goes around comes around, and we may need to defend the court's progressive actions against a rightwing president in twenty years, even if the GOP is more viciously cynical about this in terms of short-term gains to be had) That way Obama can continue to pound away at the issues at stake in terms of history and public philosophy rather than at the institution itself, even if Scalia is becoming increasingly brazen. (PS I was surprised to learn here that Scalia was on Fox News, especially if he was essentially reiterating standard rightwing ideology points rather than general remarks on the court. Now THAT would be a crass politicization which will only harm his reputation if true.

- atlasqq

April 5, 2012 at 11:11am

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April 4, 2012, 8:30 PM ‘Embarrass the Future’? By LINDA GREENHOUSE Nothing in the Supreme Court arguments in the health care case last week, or in the subsequent commentary, has changed my opinion that this is an easy case. It’s the court that made it look hard. I don’t mean the torrent of wisecracks at the government lawyers’ expense from Justice Antonin Scalia, who despite his clownish behavior in channeling the Tea Party from the bench is surely smart enough to know the difference between broccoli and health care. Rather, I mean the tough but fair questions from the members of the court who actually seemed to be wrestling with the issues: Justices Anthony M. Kennedy and Samuel A. Alito Jr. and Chief Justice John G. Roberts Jr. The Affordable Care Act will be upheld if least one of these justices is satisfied that the briefs, the arguments, and his own judicial perspective provide sufficient answers to the questions. http://opinionator.blogs.nytimes.com/2012/04/04/embarrass-the-future/?src=me&ref=general ____________________ It is not the court's "prerogative to challenge legislation." It is the court's duty to determine whether legislation is consistent with the Constitution as the supreme law of the land. Because that is what common law judges do, determine how the controlling law applies in concrete situations. While judges are human beings and their thinking is necessarily influenced by many things, the claim is that a constitutional decision is compelled by correct understanding, it is not merely discretionary. To the extent that there is discretion, the Acts of Congress must be upheld. The conservatives seem to have forgotten this completely, if they ever knew it, in favor of the view that the law is whatever they say it is. The single most appalling thing I heard from the arguments was Scalia asking whether it was realistic to expect the justices to read (let alone understand) the ACA before deciding whether the mandate is severable. Now, it seems, they don't even need to read the Acts of Congress to decide whether or not they are constitutional. This accords nicely with their view that the court is a super-legislature, our version of the Iranian Ayatollah's council, that is meant to exercise its own discretion on policy matters.

- roidubouloi

April 5, 2012 at 11:39am

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Roid, the Right talks a lot about what they see as our ideological blindness, and you're giving them a lot of ammo. What makes you appreciate America, as opposed to Country X? Is it the topography, perhaps?

- Mikelawyr22

April 5, 2012 at 12:25pm

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Self-correction: Scalia apparently was NOT on Fox News, he just sounded like one of their commentators during the court's hearing. Bad enough! He certainly sounded like an ol' county-courthouse yakker.

- atlasqq

April 5, 2012 at 12:25pm

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I think I go with roid on this. The Conservatives on the Court have politicized it and if that means that they lose the prestige of the court and get dragged into the political fray, they have only themselves to blame. I think the president's remark were shot across the bow of Roberts and to a lese extent Kennedy. Do they want a fully politicized court or not, ball's in your court

- southpaw

April 5, 2012 at 12:48pm

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Ideological blindness to what exactly, mike? Or does it suffice just to mutter the words. So, what's your point? That love of country means it should be above criticism? That because I love my country I should stop criticizing the completely insane, moronic, predatory every-lying right-wing that is trying to destroy the place, including prominently Antonin Scalia and his claque on the court? It is because I love my country that I criticize them. If that gives the idiots ammunition, I don't fucking care. The fact is, they don't need ammunition. They invent it by the second, manufacturing whatever lies they find useful at that moment. So nothing I could possibly say adds one whit to their ammunition. What we need to be doing is calling constant attention to their lies and depredations until they are utterly discredited.

- roidubouloi

April 5, 2012 at 12:59pm

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Campaign against the Court? Politically probably not significantly advantageous. As a means to influence the Court's behavior...perhaps so. FDR's attempt to pack the Court is generally seen as outrageous overreach, rightly condemned and soundly defeated. But it intimidated the hell out of the Court. The presidency was willing to assualt and pull down their reputation. The Court began ruling in his favor. That was the object. Three of the current justices may be irredeemable sinners, but Kennedy and Roberts just might be concerned that the current Court lose its good reputation in the history books. "He who steals my purse, steals trash...but he that filches from me my good name..."

- Vogelfam

April 5, 2012 at 1:19pm

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Roid, I simply asked you what you admire about the United States.

- Mikelawyr22

April 5, 2012 at 1:22pm

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Because Gore didn't challenge the Court, we're now in this situation. When does it end and the Court be held accountable?

- ProvostA

April 5, 2012 at 1:34pm

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Funny, didn't seem like a simple question as posed. Most of what I admire about the United States has to be stated in the past tense, as the things I admired are fast disappearing: Widespread economic opportunity Broad access to education Social mobility Commitment to civil liberties A secular public square Egalitarian ethos "Can-do" mentality Aspiration to an inclusive American citizenship Sense of shared public welfare Most of what I admired began to come to a close around the end of the 60s, buried by the Vietnam War and the backlash against civil rights. The deal was sealed with the election of Reagan in 1980. In terms of what I admire, it has been pretty much downhill from there due to the ascension of the right, the religious right, the libertarian right, the wacko right. And I am broken-hearted.

- roidubouloi

April 5, 2012 at 1:44pm

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So you used to admire the United States, and now you don't. Too bad for you. I still find a lot to admire, Especially the structure that enabled most of the things you say you used to admire.

- Mikelawyr22

April 5, 2012 at 2:14pm

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Mike, the "structure" that enabled most things that roid lists includes key components such as a progressive tax system, public investment in education, respect for science, regulation of banks and other financial institutions, and organized labor. You might take a peek out the back door and notice who is energetically dismantling that structure as we speak.

- ironyroad

April 5, 2012 at 2:24pm

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Vogel, roi et al.. FDR did not campaign against the court. He went after the court after he was re-elected (by a landslide). He lost the battle to increase the court size-- but won the war. SCOTUS got the message. I agree it woiuld be unwise for BHO to campaign directly against the court-- but rather should openly campaign for Progressive values and policies that the radical conservatives in Congress AND SCOTUS support. The end result would be to change the court. And to give fullthroated supoort and generate new effective policies that roi admires that are NOT supported by radical conservatives.. and perhaps many who comment on this site. Myproblem with BHO in that regard-- I dont think he has the personality or the policies to be a Happy Warrior and effectively campaign for a New New Deal.

- drofnats1

April 5, 2012 at 2:28pm

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I stopped reading when I read this: "Although this may be a shrewd short-term political calculation, it raises troubling questions about a president’s broader responsibilities to the constitutional order he is sworn to uphold," and thought to myself, doesn't this apply better to a supreme court justice asking about broccoli at oral argument? At some point the other branches have to check the judicial branch when they ignore precedent and the constitution and vote on nakedly partisan lines. No one took the challenges to the ACA seriously until the oral argument because it should be an easy case.

- rusty

April 5, 2012 at 2:30pm

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That's right, mike. Not very much any more. But, given our history, I am not without hope that these things can once again be the defining characteristics of America, and I think it is still worth fighting for, not yet a lost cause.

- roidubouloi

April 5, 2012 at 2:44pm

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Irony, everything you cited is a consequence of the structure. I am an optimist. R*p*bl*c*ns can hold on for only so long. Demographically, they are doomed. This country is strong enough to withstand them. It withstood everything else.

- Mikelawyr22

April 5, 2012 at 3:00pm

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"It would not require an intellectually outrageous constitutional law decision to overrule the individual mandate. Respectable arguments have been made by competent lawyers that could persuade reasonable and conscientious justices to rule that way." No. As a number of conservative lower-court judges concluded, to overturn the ACA on the arguments that have been advanced against it, the Supreme Court would have to invent a novel and unprecedented limitation on Congress' power under the Commerce Clause. This would fly in the face of the past 75 years of settled precedent as to the proper role of the Court -- as Obama pointed out, an unelected body -- in reviewing legislation duly enacted by the elected branches of government -- namely, that legislation should rarely be overturned, and only if it violates an explicit constitutional prohibition (e.g., the Bill of Rights or the 14th Amendment) or if it can't be shown to bear any rational relationship to legitimate legislative purposes. Abandoning this constraint on the Court's power to overturn Congressional enactments would amount to a return to the pre-New Deal era, when the Court claimed the power to sit as a super-legislature and to think up on an ad hoc basis reasons to reject any legislation that didn't conform to its right-wing social and economic views. This would be a major change in the constitutional relationship currently in effect between the Supreme Court and the co-equal, elected branches of government -- a grab for power by the Court that would in effect be something close to a coup d'etat. Obama's point that the Supreme Court is not an elected body was well-taken. He was right to remind the Court that the ACA was enacted by the elected representatives of the people, and the Court should not overturn it by inventing new constitutional limitations on Congress' power out of thin air.

- walderman

April 5, 2012 at 3:30pm

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"Irony, everything you cited is a consequence of the structure." No, Mike, component parts of the structure. The consequences are more what roid outlined. Economic opportunity doesn't produce a progressive tax structure or investment in education; rather, they serve economic opportunity.

- ironyroad

April 5, 2012 at 3:50pm

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Outstanding, utterly satisfying responses Roi - but I would never have dignified a request that you document what you love about America, especially from someone even mentioning something as tedious and trite as the name of some lame old communist newspaper (oh burn, as my kids say). That level of discourse is beneath you and you are not required to defend yourself against it to make your points. Not that you ever back down, bless you, but please don't ever do that again.

- WandreyCer

April 5, 2012 at 3:52pm

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The Constitution made possible a progressive tax system, public investment in education, regulation of banks and other financial institutions, and organized labor. Respect for science? That's a little different.

- Mikelawyr22

April 5, 2012 at 3:54pm

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Campaigning against the court is at least as valuable to the country as corporations having free speech rights. We need to undersand the danger of picking judges because of their political beliefs instead what they bring to the legal community because the legal system too important. So important we seriously subsidize it. For $350.00 you get the use room in a building for unlimited time, jurors to listen to your case, a highly trained supervisor of the proceedings and a support staff. And you can have the whole thing reviewed by three highly trained legal experts (or more) for $450.00 plus a room to argue in. Can you beat that price?

- Nusholtz

April 5, 2012 at 4:49pm

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you know what, even though roid didn't say it I will: screw you mike for calling anyone who does not agree with your own blinkered view a part time patriot. It is that kind of assholery that Republicans excel at as they seem to believe that only they possess patriotism. And our Constitution is not so phenomenal, it did not prevent our country from descending into the bloodbath that was the Civil War, and it has also been subject to numerous amendments, it was not written by Jeebus with a helpful assist from God almighty and frankly there are aspects of it that are ridiculous, such as the US Senate, which affords residents of a state like Alaska proportionally far more weight in their votes than it does for a person from California. I understand the historical reasons for this, but to pretend it is perfect is just idiotic. If we got rid of the Senate tomorrow our system of government would be far more effective and would still have 3 co-equal branches of government. And when we say co-equal that also means that the Judicial is not a freaking religious body embodied by the Holy Spirit. But I guess my not falling all over myself saying "we're #1" like a mantra means I somehow hate America. Well bullshit to that. And unless you left behind a limb in Vietnam, Iraq, or Afghanistan I would put my love of America up against you any day, if not more so because I have been in situations where being an American meant being in danger and I never once shrank from my heritage in those cases.

- blackton

April 5, 2012 at 5:38pm

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Yeah, Mike, uh, most constitutions make those things possible. There's nothing distinctive about ours in comparison to other western Democracies, in that sense. And I'd note that, constitution or no, the law didn't stop a 'conservative' court from trying to block the right to organized labor, progressive federal taxation, and various other things we take for granted during the Lochner era. As noted above, it took FDR's campaign against that court to overturn those obstacles.

- Curran1

April 5, 2012 at 6:24pm

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Perfect Blackton, Irony. Again, I would never have dignified such an assine, narcissistic construct in the first place, but more power to Roi for having more patience, grit than I ever would.

- WandreyCer

April 5, 2012 at 7:21pm

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Okay. Now let me get this straight..... the consensus here is that the Supreme Court and its edicts are not God. That, essentially, there is nothing sacrosanct about Law. Is that the deal?

- jacko

April 5, 2012 at 7:40pm

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No, it's not the deal. I honor the Constitution. I don't fetishize it. As Justice Oliver Wendell Holmes Jr said, it's not a suicide pact.

- ironyroad

April 5, 2012 at 7:55pm

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Irony. I love you, man. Truly.... I enjoy your commentary and its spirit. Perhaps you could fill us in the space between fetish and honor....... with an exegesis on its relevance to the current condition.

- jacko

April 5, 2012 at 8:26pm

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Well, thanks jacko. I also like a guy who risks using the word exegesis. Saying it always feels like ordering the most expensive cocktail at the bar. I don't know, but I worry sometimes -- if the Constitution (in the reading of the current Court majority) prevents us dealing effectively with the challenges of a large industrial/postindustrial society, then at what point do we become like the Ottoman Empire in 1910 or whenever, not understanding that installing a telephone in the Sultan's royal palace won't save our asses in a struggle with the countries who invented modernity?

- ironyroad

April 5, 2012 at 10:42pm

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Galston is a weenie. The President doesn't intend to challenge the authority of the Court, but he does apparently intend to criticize it. Criticism is fair play under the Constitution, and has a higher standing under that document than the Court's opinion in Marbury v Madison. Galston needs to stop crying for John Roberts. If the Roberts Court wants to engage in partisan politics as jurisprudence, then there ought to be lots of noise about it, and the President shouldn't feel obliged to meekly hold his tongue. Neil

- purcellneil@aol.com

April 6, 2012 at 5:14am

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Or how about if we try this Irony, panel Four on the Jefferson Memorial. Thomas Jefferson still has the last word so often in this country. Scalia and his minions should have it tattooed on their foreheads: "I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opnions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under their barbarous ancestors."

- WandreyCer

April 6, 2012 at 9:04am

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Your point is very well-taken Neil. Galston probably would agree with you that criticism of the Court is fair play under the Constitution. But he likely would say that it nevertheless would be unwise for the President to exercise that fair play in a way the undermines the Court as an institution. I think that is a valid concern. But I also think Galston erects a straw man. I see no indication that Obama plans an all-out attack on the Court as an institution. At most, he has signaled criticism of a decision invalidating the ACA. As to Obama’s public statements about the pending Court decision regarding the ACA, the reaction has been overwrought. Obama invoked Conservative rhetoric in opining that an unelected group of judges should not invalidate a duly enacted act of Congress, and said he was confident the Court would do the right thing. Calling that a veiled threat is ludicrous. True, Obama’s suggestion that the Court is not empowered to invalidate acts of Congress and has not done so in the past is patently incorrect and I am surprised that he said that. Still, it indeed has been rare for the Court to directly confront the President and Congress by invalidating a major piece of national legislation where there is no clear or compelling jurisprudential basis for doing so. Even if we give the challengers of the ACA’s constitutionality the benefit of the doubt and assume that the Court could write a credible opinion invalidating the ACA, it is at least equally the case that the Court could write a credible opinion upholding it, particularly in light of existing precedent. So, if the Court jettisons the presumption of constitutionality and invalidates the ACA based on some sophistic reasoning, it will indeed have shown itself to be a completely corrupt and political institution, without Obama having to say a thing. Dhurtado

- NR143296

April 6, 2012 at 9:40am

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Brilliant, wandrey. Great memory. I regard that sentiment as so much a part of American jurisprudence that I had quite forgotten Jefferson as its source (despite a visit to the Jefferson Memorial a year ago). Who better? And thanks for your encouragement. Happy Holiday, whichever you may be celebrating this weekend.

- roidubouloi

April 6, 2012 at 10:06am

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The essence of Galston's perpetual appeasement is that he does not find much fault with the aggression, the court's nakedly political behavior, but with the political, and mild, response. Scalia needs to be publicly ridiculed by law professors across the country.

- roidubouloi

April 6, 2012 at 10:08am

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Despite the title of Galston's analysis, it seems to me that he is not saying President Obama should not campaign against the court's decision, if it strikes down the health reform law. What I read from Galston's argument has to do with how the campaign against such a judicial outcome runs: not against the Court as an institution--except maybe to protect it from its politicization which would become even more apparent in another major 5-4 outcome along partisan lines in which the majority has resorted to silliness like Scalia's Tea Party obeisance to the broccoli analogy. What needs to be campaigned against is the narrow majority's vision of a truncated and anti-democratic Constitution, and future, backed as it has been by arguments that would not bear rational, let alone constitutional, scrutiny.

- orray2

April 6, 2012 at 1:30pm

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Ridicule Scalia? I peg him as the kind of guy who's rude to his wife in bed.

- Mikelawyr22

April 6, 2012 at 2:15pm

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Obamacare is a political football used by democrats and republicans to distract the people from the real failure of congress, the president, and the federal reserve of creating jobs for the 25 million unemployed Americans. The American people are too smart to be mislead by the inept politicians and the press. It ain't over until it is over. Everything else is cheap commentary.

- JAIMECHUCH

April 6, 2012 at 8:56pm

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There are neither those of the left nor those of the right but all the contrary. Wise words of a politician, Luis Echeverria Alvarez, 1970-1976 Mexican president. That is what Obamacare discussion boils down to. Luis Echeverria Alvarez created Cancun as a top touristic resort, of course after he purchased sizable pieces of land when it was cheap. He still is alive and has a mega house in Cancun. He has also the distinction that as interior minister to his predecessor directed the Tlaltelolco massacre of dissident demonstrators. Efforts to bring him to trial have failed. You see Mexico has nothing to envy Syria, massacre wise and leaders getting away with it. Fortunately we don't kill, we just keep people unemployed and distracted with Obamacare bs.

- JAIMECHUCH

April 6, 2012 at 9:13pm

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What is there to have 25 million Americans unemployed. They surely can not live the American dream. But do unemployed people get killed? Well Black youth unemployment is running at 30%+ , illegal drug gangs fight each other , killing of young Blacks, by each other, is at epidemic proportions . And the powerful are discussing Obamacare. Health care reform is a lost cause, it always was. Obamacare is a thousand page gorilla nobody knows what it is all about. Employing the unemployed is also a lost cause, as long as the present guys are in charge. look at the future and to quote Tavis Smiley , my favorite honest commentator, keep the faith. Up up and away.

- JAIMECHUCH

April 6, 2012 at 9:33pm

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Since you are so interested in Mexican history, here we go. The Mexican president Miguel Aleman Valdez , 1946-1952, created the resort Acapulco, of course after he had purchased sizable pieces of land when they were cheap. The movie The Treasure Of The Sierra Madre was filmed while he was president. Some Mexican politicians objected to the movie because the Mexicans in the bar fight of the Americans just stood by like cowards. Miguel Aleman allowed the movie to go forward. As ex-president he was in charge of tourism. BTW Bruno Traven the author of the novel of the movie, was never known who he was. The rumors in Mexico were that the Mexican president Adolfo Lopez Mateos, 1958-1964, a superb orator, was the real Bruno Traven. Anyhow the movie is superb, and the director John Huston captures the provincial Mexico exactly as it is. His father Walter Huston, is in the movie, and received an Oscar for best supporting actor. It is one of my favorite movies. Humphrey Bogart, Walter Huston, Tim Holth. Excellence in acting. The kid in the movie selling the lottery tickets is Robert Blake, later he made In Cold Blood, and the tv series Baretta, and in his sixties was accused of killing his ex wife, but found not guilty.

- JAIMECHUCH

April 6, 2012 at 10:12pm

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Well there's some point to the aspects of political theater, as in Mexico. Just take a gander at our "news" outlets...and at the political circus in Washington, these absurd budgets, the gamesmanship with the debt ceiling, that have probably made the rest of the world think we crazy and reactionary and dangerous. Anyway, hooray for Roid et.al. I see absolutely nothing unpatriotic about commenting on this ridiculous situation that in fact is imperiling the nation, to wit, the fact that the Supreme Court has become a political tool of the far Right. It might be true that the Republicans, who have apparently lost their minds, are demographically challenged but look how much damage they've done in the meantime, just since Bush v Gore! It's appalling. It doesn't take much to unbalance a democracy. I keep thinking of the Titanic. There's an article in TNR just now about the film and about the glorious doomed ship and the creativity that created her, and the hubris that claimed she couldn't sink, and shortly after that the insanity of The Great War, in which millions and millions of people were killed for no apparent reason... Meanwhile in regard to "fetishizing" the Constitution, oh some of us absolutely do that, and claim any critique thereof, or of the system, must be unpatriotic. This is absurd. Just as some people seem to forget "The Bible" was written by PEOPLE and ditto, the Koran, despite the assertion that Mohammed was taking dictation from an angel; he was a person, period, of a certain time, place and culture. Moreover, any system, religious or political, that can't withstand a challenge, and can't change according to common sense, for one, and for another, vastly different economic, environmental and social challenges, is a dead system by definition. The intent of the Founding Fathers was obviously not to create a dead system, in fact that's what the American and later the French Revolutions were fighting. They were fighting rule by king and church and class, the ossification of aristocracy and the rule of superstition. And, they were fighting what the oligarchs seem to be trying to ensconce, which is a permanent, hardened class system and a return to the power of superstition, increasingly having infiltrated our world with a fundamentalist and extreme religious point of view that rivals the Taliban. Meanwhile they ignore the immorality of destroying an entire planet, of leaving people in poverty, or lacking basic care, whilst claiming it's moral to force rape victims to bear children and making it legal to rape women with ultrasound machines and strip search Americans for basically no reason at all. Alas, it appears our far Right intends to enshrine themselves in control in perpetuity. That is so totally against the whole idea of America. It's also worth recalling that Americans used to be able to own other people and it's time to put land and slaves out of the voting process, ie end the electoral college. This in and of itself enabled the travesty of Bush v Gore and the host of other ills that have assailed us recently, including our lack of human rights. Any time an American can be strip searched willy nilly, or shot to death simply for being the wrong color, or forced to bear a child, or undergo an expensive, invasive and useless "medical procedure" which is in fact legalized torture, we are not a free country and there's nothing free about dying for want of health care either.

- Sophia

April 7, 2012 at 2:22pm

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Oh PS: wonder how they'll rule if THIS piece of work comes up for review: http://www.huffingtonpost.com/2012/04/06/scott-walker-wisconsin-equal-pay-law_n_1407329.html?ref=mostpopular

- Sophia

April 7, 2012 at 3:07pm

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