Obama’s Issues with the Supreme Court

Notwithstanding the National Women’s Issues Conference held at the White House last week politically, President Obama did not have a good week. While Obama worked to develop and expand the yawning gap in approval with women voters between Romney and himself, Friday’s job’s numbers were dismal. Earlier in the week Obama made unfortunate remarks about the Supreme Court’s role in reviewing legislation that suggested the former Constitutional law professor did not understand the basic role of the Court as the equalizing branch of Government.

Though I support this President both of these events were disquieting.  On the court we can be sure the President knows better than to project the ill-informed position that he did.  

The Supreme Court is the third party referee, which when called on reviews the Constitutionality of the actions of both the Executive and the Legislative branches of government. Any suggestion to the contrary is poppycock. As a result of Obama’s statement last week which seemed to suggest a decision to overturn the mandate would be unprecedented, conservatives have, rightfully so, bludgeoned Obama with a week’s worth of Marbury vs. Madison. Those who support the Health Care Legislation can support the political effort Obama is making, but ought to acknowledge the unfortunate choice of words is a poor way of making the case and casts the President in uncomfortable territory with some very unsavory friends.  

To be fair the right has made judicial activism a trumpet’s call for their originalist view of the Constitution, but in application they have been far from consistent in application. According to the Originalists the Constitution is not a living breathing document and the court’s role is to merely define the specific intent of the founders in defining the role of the three branches of government . According to this cramped view, the court’s primary role is to interpret precisely the intent of the founders.  On this course, expansive rulings such as Brown V. Board of Education which outlawed segregation in public schools may have fallen outside the Court’s jurisdiction. However, when given the opportunity the Court’s two most fervent Originalists, Scalia and Thomas, have themselves not always taken up the argument that the Federal Government does not have compelling interests that goes beyond the original language of the founders. In United States v. Fordice, neither claimed a limit to the government’s effort to promote affirmative action in Mississippi schools. The fact is even with the Originalists there is quite a bit of room for interpretation.

As we hear the hysterical right now rail against Obama’s blunder, it worth noting the complete inconsistency in their argument.  Most recently—and this has been pointed out ad nauseam so apologies in advance—anti-gay ideologues have repeatedly gone to the courts to overturn either legislatively or ballot approved initiatives in favor of gay marriage. The religiously based view that the state has a compelling interest in defining the traditional view that marriage can only be between a man and a woman seems to me to be unconstitutional. But that has not prevented case after case from being brought before the courts. Moreover, in attempting to overturn initiatives enacted through democratic means, those on the right who seek relief from the courts—albeit usually at the state level--  make a mushy argument even more limp in the context of any sort of Originalist view. Where, one might ask, does the Constitution hold for the Government the role of defining what marriage is, especially if that would be defined through a pseudo-religious prism.

The Supreme Court decision in Citizens United, a case which Obama has blasted at nearly every opportunity, resulted in the court holding that “the First Amendment prohibited the government from restricting political expenditures by corporations and unions”. Obama addressed this ruling specifically and publically also, but at least in this case he chose the well-worn path of disputing the decision without attacking the legitimacy of the court, or trying to suggest limits to the Court’s authority. Since the Citizens United ruling held that portions of the recently enacted McCain Feingold bill were unconstitutional, it’s a bit of a reach to believe that our President did not understand the role of the courts in reviewing legislation.

History is replete with examples of the Court’s ground breaking and wholly necessary intervention on behalf of expanded Constitutional rights of Americans. Brown v. Board of Education and Roe v. Wade are but two examples. It is precisely these sorts of unlegislated rights which drive conservatives into a frenzy of slander which at its core attempts to delegitimize the courts.

So my point here is that the Supreme Court has a long record of decisions which inflame those on the right and/ or those on the left. Some of the decisions such as Plessy v. Ferguson which upheld laws of segregation or Korematsu v. United States which upheld the government’s right to send Japanese Americans to internment camps in World War II were clearly wrong and are now roundly criticized both those in both parties. Even as we criticize, it seems to me that neither side of the political spectrum is well served by arguments that obfuscate or delegitimize the role of the court.

Much of this posturing is solely political in nature. I believe that most observers on the right and the left understand that the court as an institution with broad powers is not only a part of our constitutional system of government it is also part of the American tradition as a  government of laws. But it is critical  to recall that Supreme Court decisions are a constant reminder that elections have consequences. Whether in Bush v. Gore (Gore lost and we got a misguided war with Iraq), or New York Times v. United States (NY Times won and we got the Pentagon papers) it is always worth noting that when it comes to the Supreme Court elections have consequences. Those who want to change the direction of the court would do well to spend less time attacking it, and more time changing the political circumstances which framed the court in its current configuration.