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Why Take On The Supreme Court?
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Why Take On The Supreme Court?

Gilbert N. Kahn is a professor of Political Science at Kean University.

The final months of the Supreme Court’s 2011-2012 could very well be one of the most important and impactful periods in recent Court history. Last week, however, the Court received one of the strangest jabs when a former Constitutional law professor implied that the Supreme Court has no right to exercise its power of judicial review to overturn the Affordable Healthcare Act passed by Congress last year. 

Attorney Barack Obama in essence sought to pull an F.D.R.  Like President Roosevelt did in his frontal attack on the Court with his infamous court-packing plan in 1937, President Obama was suggesting last week that were the Court to overturn the healthcare law and declare it unconstitutional, it would represent a”… judicial activism or a lack of judicial restraint — that an unelected group of people would somehow overturn a duly constituted and passed law.”

The fact that within hours the White House as well as his supporters were dancing around explaining the President’s comments only added to the recognition of the fact that the President had gone too far in trying to defend and advocate –almost as a mini-amicus brief without the citations—that the Court not strike down the healthcare law. It even made Laurence Tribe, Professor at Harvard Law School and Obama’s former mentor, cringe at the statement by his former student and suggest that the President had obviously “misspoke”.

In 1937, Roosevelt was so fed-up with seeing the Supreme Court repeatedly overturn and throw-out his New Deal legislation in a series of 5-4 decisions that he chose to flex his presumed political muscle. After his 1936 landslide victory F.D.R. sought to dramatically re-shape the Court in his own image through by using the power of the Presidency and his Democratic majority in Congress. Aside from the fact that the plan failed to be passed, and despite the fact that within months as a result of natural changes the Court’s complexion was changed, F.D.R. , unlike Obama, was a highly popular President who tried to pull a political fast one and was slammed eventually by his own Party. While he eventually did see the Court turn around, the implicit intimidation which Roosevelt launched against the Court left him with one of the major political black-eyes of his entire tenure in office.

For President Obama now to challenge the legitimacy of the Court’s long established “right” to review and declare laws unconstitutional was politically foolhardy, knowingly irresponsible, and, in all likelihood, counterproductive. While Obama is clearly upset and quite anxious about the potential political fall-out from what the Court might decide in June in the healthcare case, he is only alienating Justices and disturbing the tenuous horse-trading which undoubtedly is occurring as the Justices deliberate the law’s fate.

Admittedly, the President understood that the Court’s balance appeared likely not to be in his favor; neither on its face nor as a result of the less than distinguished performance of his Solicitor General nor based on the Justices’ oral questioning. Some of his advisers must have suggested that the President’s cause would be best served by his personally jumping into the fray.

We will not know probably for decades whether his confrontational challenge to the Court’s power  had any affect whatsoever on its considerations. It seems, however, the entire episode was unfortunate and a mistake; so much so that it could even pique one or more of the waffling Justices in the course of their deliberations.

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