Jeffrey Rosen is the legal editor of The New Republic.
Barack Obama is gunning for a confrontation with the Supreme Court, and Chief Justice John Roberts has signaled that he welcomes the fight. Last week, the chief justice described the president's State of the Union condemnation of the Citizens United decision as "very troubling" and complained that the speech had "degenerated to a political pep rally." Roberts was making an argument about etiquette--dissent was fine, he said, but Obama had somehow transgressed the boundaries of civilized discourse by delivering his attack to a captive audience. But he was implicitly making a political argument as well. That is, Roberts seems to have joined the battle with Obama because he thinks the Court can win it.
As a matter of history, this argument is wrong: In battles between a popular president and an anti-majoritarian Court, it's almost always the president who prevails. Using the Court as a punching bag puts Obama in the company of his greatest predecessors, Jefferson, Lincoln, and both Roosevelts--all of whom bashed the Court for thwarting the will of the people. As long as he plays his cards carefully, Obama has much to gain from challenging John Roberts, and the Roberts Court much to lose.
The successful history of presidential Court-bashing shows how fragile the justices are in the face of presidential attacks supported by a mobilized majority of the country. Thomas Jefferson attacked his distant cousin and arch-rival, Chief Justice John Marshall, for his "twistifications" and suggested he couldn't be trusted; he encouraged Jeffersonian Republicans to intimidate Federalist judges by impeaching Justice Samuel Chase. Marshall reciprocated Jefferson's disdain, calling him "the great Lama of the Mountain." But Marshall was so spooked by the Chase impeachment that he anxiously suggested in a letter to Chase that Congress should be allowed to reverse Supreme Court decisions it considered "unsound." And he fell over himself to accommodate Chase's accusers when called to testify at the impeachment. Marshall had diffused the crisis, and Chase was acquitted. There was, however, no doubt that Jefferson had accomplished his mission: Marshall acknowledged that he never fought battles that he knew he couldn't win.
Likewise, Abraham Lincoln vaulted from the House to the presidency by bashing the Dred Scott decision. "[I]f the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court the instant they are made … the people will have ceased to be their own rulers," Lincoln declared in his first inaugural address, as an agitated Chief Justice Roger Taney looked on, trembling with rage. Lincoln continued his attack on the Court in his first State of the Union message, where he proposed reorganizing the federal circuits, part of a broader effort to break the long-standing Southern majority on the Court. But Lincoln also wisely rejected extreme Republican proposals to pack the Court by expanding it from nine to 13 justices, or to abolish the Taney Court entirely, acknowledging that Supreme Court decisions should be binding when "fully settled" by the people of the United States.
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