Friday, April 6, 2012

SCOTUS as Talking Point

President Obama's recent characterization of a possible overturn of the ACA by the Supreme Court as "unprecedented" is symptomatic of an increasingly combative attitude between the three branches of government. It is not the first time the President has spoken out against the Court - he famously criticized the Citizens United decision in his 2010 State of the Union address. In addition, he regularly describes Republicans in Congress as "trying to impose a radical vision on our country," as in a recent speech.

Mr. Obama's comment on the Supreme Court is clearly rife with inaccuracy - more than ample precedent exists for voiding unconstitutional laws, and 219-212 is hardly a "strong majority." However, Mr. Obama's goal was likely an attempt to limit political fallout should the Court decide against him, rather than rigorous legal accuracy. As Tom Goldstein, a veteran Supreme Court attorney, noted, "The administration seems to be positioning itself to be able to run against the Supreme Court if it needs or wants to."

In response, Senate Minority Leader Mitch McConnell encouraged Mr. Obama to "back off" and "let the Court do its work." Conservative analysts, such as the Heritage Foundation, focused on picking apart the semantics of the President's statement. Perhaps most significantly, a 3-judge panel on the 5th Circuit requested a three-page explanation of the administration's position from the Department of Justice.

Attorney General Eric Holder quickly complied with the 5th Circuit, but held that judicial review should only be exercised in "appropriate cases." Other supporters of the President backtracked still less. Liberal legal analyst Jeffrey Toobin strongly asserted his belief that there was no error in Mr. Obama's statement, criticized the 5th Circuit's demand, and even called some Republican judges "deranged." White House Press Secretary Jay Carney, on the other hand, defended Mr. Obama's position as being misunderstood since it was conveyed in legal "shorthand."

The significance of these varied responses is that nearly all of them dealt with political goals, not substantive policy concerns. Politicians and analysts from both sides of the isle quickly seized on this opportunity to make harsh criticisms of their political opponents. The discussion devolved into name-calling and lost sight of the Constitutional complexity of the Supreme Court's consideration of the Commerce Clause. The branches of the government should be distinctly separate and equal in order to guarantee appropriate conduct from each, but do not necessarily need to constantly work at cross purposes to one another.

Regardless of one's views on the utility of congressional gridlock, the introduction of that highly combative, politicized atmosphere to the nation's highest court is inappropriate and dangerous. In order to ensure to the appropriate functioning of the Supreme Court, the justices' decisions must ultimately be subject only to the Constitution, not to the political pressures of the legislature, the administration, and the 24-hour news cycle.


  1. I really don't think this is much of an issue at all. President Obama should have the right to say "I think this is a constitutional law, and you shouldn't overturn it on those grounds" to the Supreme Court. And his opinions shouldn't be ignored: this is a man who taught Constitutional Law at arguably the second-best Constitutional Law School in the United States (the same school which produced Antonin Scalia, widely regarded as the intellectual heavyweight on the right-leaning spectrum of the court). He's not threatening them, he's not placing any sort of political pressure, and in all honesty there are, at best, two justices whose opinions are not yet assured on the issue (Kennedy, a well-known moderate, and perhaps Roberts, who is rather cautious).

    We live in a combative political system, and saying "I think you're wrong," is not a major problem. Yes, the phrase "Judicial Activism" means nothing, it's a rhetorical device, but these are politicians who are liable to say such things. The Supreme Court, too, is not above such politics: no matter how you slice it, Bush v. Gore is a political decision. The 7-2 decision on equal protection violations was totally within legal grounds, but the 5-4 decision that stated it couldn't be used as precedent? come on. Let's not kid ourselves: the Supreme Court uses legal justifications, but they certainly do not lack ideological bents in the slightest.

    And to pretend like this is the first time this has happened is absurd. The phrase "activist judges" has been repeated ad nauseum in this election. The only real issues arise when people like Newt Gingrich promise to ignore the Supreme Court, undermining the structure of our government. Some things are just wrong and mislead the public, and shouldn't be said. Obama did nothing of the sort: he expressed an opinion in pretty tame terms. The Supreme Court decision on Obamacare is a vital one, and will affect the entire nation. People should be allowed to express their opinions, and Obama clearly believes that overturning the law that bears his name is wrong. That shouldn't be a controversy: it should be common sense.

  2. Hey Harry, thanks for taking the time to respond. I see where you're coming from, and definitely think there are some nuances here that can improve on what I was trying to say.

    I completely agree that the President's opinion should absolutely be respected, but some parts of his statement, in your words, are just wrong and mislead the public. Unfortunately, Mr. Obama did much more than merely state his opinion in an abstract sense. As I noted above, he deliberately phrased his statement in such a way as to strengthen his administration's political position should the court rule against him.

    The inaccuracies in his statement are pretty apparent either from a simple fact check or a review of relevant precedent. As one of my links above shows, there's simply no way the final healthcare vote could be construed as a "strong majority" of Congress, as the President claimed. Furthermore, an accusation of "lack of judicial restraint" has nothing to do with overturning a "duly constituted and passed law" and everything to do with the accuser's ideological preferences, as you pointed out. Rather, overturning laws passed by Congress is precisely the Supreme Court's job description and has been since 1803. Obama's statement characterizes this very act as extra-constitutional and extremist, which is highly inappropriate.

    It's absolutely beneficial to have a national, substantive dialogue on these issues. If we could get the people to discuss some of the underlying realities of Mr. Obama's statement, we could make a lot of national progress on this issue. His ideas about the gravity of altering the scope of the commerce clause, and his suggestions that many Republicans are being hypocritical about the judicial process, are valuable, complex, and deserving of careful consideration.

    But instead, the national discussion has come to focus on correcting the factual and constitutional errors of his statement. Arguing over semantics and name-calling are much easier for the public to understand and maintain an interest in; thus, that dimension of the issue is the one that has received the most national attention. Similarly, Obama's obvious political maneuvering offered an easy way for his opponents to score political points by correcting him. As a result, we missed on hearing the substantive responses (if any) they might have offered.

    The central issue here is not the inaccuracies in his statement per se; nor does his expression of "confidence" necessarily pose a problem to the independence of the Court. The real problem here is that by making this constitutional issue a political one, Mr. Obama opened it to the strident, escalating, political conflict and, at least in part, tainted it with superfluous concerns. He made no direct threat to the Supreme Court, but the justices are now under some political pressure nonetheless. By indirectly questioning the Court's power of judicial review, he implied for it a position subordinate to that of the administration and the legislature. His statement, then, while not as explicit as Mr. Gingrich's, is similarly problematic in that it undermines the structure of the government.

    So in sum, I agree that this whole ordeal really shouldn't be a controversy - blowing such a small incident out of proportion detracts from national dialogue on this critical issue. But, when personal political priorities are introduced, the smallest things naturally become controversial, especially in the combative political system that you noted. The priority has to be substantive discussion on the Supreme Court's consideration of Obamacare. It's very difficult to for the real policy issues to shine through, though, while major actors (on both sides of the aisle) insist on attempting to manipulate public opinion through blatant factual misrepresentation.