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 The American people have withdrawn their trust from nearly all our governing institutions, and most believe that the government officially based on “We the people” responds instead to a myriad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.