JURIST Guest Columnist William G. Ross of Cumberland School of Law says that the president’s remarks on judicial review of health care reform may impede Obama from making the Supreme Court an issue in the upcoming presidential election…

President Obama’s strange swipe at judicial review on April 2 was a serious blunder. It ran afoul of the deep respect that most Americans have for the US Supreme Court even when they disagree with its decisions. Criticism of the Court’s institutional powers by a sitting president is virtually unprecedented. Obama’s remark, however, appears to constitute a rhetorical anomaly rather than the commencement of any assault on the institutional powers of the US Supreme Court. Although it may presage an attempt by Obama to make judicial appointments a major issue in the upcoming presidential campaign, the political firestorm ignited by Obama’s ill-chosen words will impede efforts by Obama and the Democratic Party to make the Court into the election issue that it could and should become.

In expressing perhaps disingenuous confidence that the Court will uphold the Patient Protection and Affordable Care Act, Obama predicted that the Court would

not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress. And I’ll just remind conservative commentators that for years what we’ve heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint — that an unelected group of people would somehow overturn a duly constituted and passed law. And I’m pretty confident that this court will recognize that and not take that step.

Two days later, Obama clarified his remark, explaining at an Associated Press luncheon that he was trying to say:

that the Supreme Court is the final say on our Constitution and our laws, and all of us have to respect it, but it’s precisely because of that extraordinary power that the court has traditionally exercised significant restraint and deference to our duly elected legislature, our Congress. And so the burden is on those who would overturn a law like this.

Quite right. Meanwhile, in his response to Judge Jerry Smith’s unusual request for clarification of Obama’s remarks, Attorney General Eric Holder has affirmed the legitimacy of the Court’s power of judicial review and has reiterated Obama’s reminder that justices should use this power in a responsible manner by according Congress a high level of deference its interpretation of the Commerce Clause.

Obama’s insistence that he did not actually mean to express opposition to judicial review is credible, for the Court’s power to review the constitutionality of federal and state legislation is so deeply embedded in the nation’s legal and political fabric that no president would dare to seriously question it, unless the Court had for a long while handed down decisions that were enormously unpopular with the large majority of Americans. Even Franklin Roosevelt’s infamous Court-packing plan in 1937 would not formally have curtailed the institutional powers of the Court. Indeed, one of the reasons why Roosevelt proposed the addition of six justices rather than curtailment of judicial review is because he believed that institutional restraints on the Court would have encountered too much public opposition and would have been too difficult to enact because most would have required constitutional amendments. Although Thomas Jefferson and Theodore Roosevelt bitterly assailed judicial review, they did so mostly only after they had retired from the presidency.

Criticism of federal judicial power appears to be rising on the right side of the political spectrum, even though the Court today arguably is more “conservative” than it has been since 1937. During his brief presidential campaign, Rick Perry expressed opposition to life tenure among federal judges, and Newt Gingrich has suggested that he would not enforce Supreme Court decisions with which he disagreed. These are probably the most barbed remarks about the Court that any presidential candidates have made since George Wallace used the Court as one of his favorite foils during his third party presidential campaign in 1968.

Despite this heated rhetoric about the Court during the Republican primaries and despite grumbling by both liberals and conservatives about the way in which the Court has exercised its powers of judicial review in individual decisions, opposition to judicial review itself remains outside of the mainstream of American political discourse. Even though the present Court — like the Court during most eras — has handed down many controversial decisions, its decisions are not generating any significant movement to curb its institutional powers. Although various members of Congress, mostly Republican, continue to support perennial proposals to deprive the federal courts of jurisdiction over various controversial subjects, particularly school prayer, no important jurisdiction stripping bill has found its way out of committee since 1958, when the Senate defeated a measure that would have curtailed the power of the federal courts to entertain cases involving domestic subversion.

Opposition to judicial review and proposals to curtail it were much more widespread during the half century before 1937, when populists, progressives and labor unions objected to decisions striking down social and economic regulatory legislation and restricting the activities of trade unions. Critics of the Court proposed various measures, including the election of federal judges, congressional vetoes of judicial decisions, nullification of judicial decisions by popular referenda and a requirement that the Court could strike down legislation only by a super-majority vote. Opposition to judicial review flared up on the right end of the political spectrum during the Warren Court era of the 1950s and 1960s in the wake of the Court’s decisions on racial desegregation, criminal procedure, school prayer and reapportionment. Proposed remedies included various jurisdiction-stripping measures and the creation of a court composed of the chief justices of the 50 states that could have overturned constitutional decisions of the Supreme Court.

For the past several decades, however, there has been widespread consensus that judicial review is here to stay. Rather than proposing quixotic measures to curtail judicial review, critics of the Court have tried to influence the judicial selection process, which has become increasingly tumultuous and partisan. Since it is almost inconceivable that the normally cautious Obama intended his original remarks to challenge this consensus, his original remarks are unlikely to be more than a curious footnote in constitutional history. Indeed, one reason the furor over his statement is so intense may be that Americans are so unaccustomed to hearing ill-considered or extreme comments from this highly circumspect president.

Although some commentators also have accused Obama of trying to bully the Court and have expressed fear that his remarks could intimidate at least some of the justices in their deliberation on the health care law, there is little to reason that this was Obama’s intent or that his remark would have this effect. Since the Court is, in Alexander Hamilton’s celebrated phrase, possessed of neither the power of the purse nor the power of the sword, the justices are acutely aware of their dependence upon the support of the other branches of government and the American people for the enforcement of the Court’s decisions. In the absence of any significant movement to curtail judicial power, however, there is no reason for the justices to suppose that the Court’s nullification of the health care law would generate any significant support for abridgment of the Court’s institutional powers insofar as there is substantial public opposition to the law. Although Obama stated in his original remarks that the law received the support of a “strong majority” of Congress, the vote in the House was a close 219 to 212, and the Senate vote was a less than overwhelming 60 to 39. Public opinion polls indicate that Americans are deeply divided in their attitudes toward the law. The justices, who enjoy life tenure, are strong and independent women and men who are not likely to be influenced by presidential rhetoric. Obama surely must have known that nothing he could say would scare any of the justices.

It is more likely that Obama’s remarks were directed toward the voters, particularly the many liberals who are disenchanted with his administration. On a multitude of issues, including foreign policy, fiscal policy, consumer protection and the natural environment, many liberals perceive increasingly little difference between the Democratic and Republican parties. Although many of these voters never expected much from Obama, others suffer from acute disappointment. Facing a tough reelection campaign, Obama needs the votes, enthusiasm and financial support of such voters, many of whom are tempted to stay at home, vote for third party candidates or at least snap shut their wallets and purses. Although Obama’s rhetoric has become much more “liberal” during recent weeks, it is too late for him to significantly change his policies or promote significant legislation during his present term. There remains, however, one issue on which he can galvanize the Democratic Party’s liberal base and demonstrate that he is not merely Mitt Romney-lite — the Supreme Court. Although one might differ about the extent to which there is any significant difference between the Democratic and Republican parties on most political issues, nearly everyone can agree that the outcome of the election will almost certainly have a major impact on the future course of the Supreme Court. Indeed, many liberals are saying that the Court is practically the only reason why they will vote for Obama’s reelection.

Deeply divided between its “liberal” and “conservative” wings, the Court has decided a wide array of monumental cases by a five-to-four vote during the past decade. Just last week, the Court’s ruling to expand the scope of constitutionally permitted strip searches was decided by a five-to-four vote, with all of the Republican-appointed justices in the majority and all of the justices appointed by Democratic presidents in dissent. A change of even one justice therefore could profoundly affect the Court’s decisions on important issues, including the scope of the Commerce Clause, affirmative action, presidential war powers, abortion and criminal procedure. If either Ruth Ginsburg (age 79) or Stephen Breyer (age 73) left the Court during the next administration, a Republican president might well be able to turn the Court decisively to the right. If Antonin Scalia (age 76) departed the Court, a Democratic president might turn the Court in a decisively more liberal direction. And the replacement of Anthony Kennedy (age 75) by a president of either party would likely transform a swing vote into a reliable vote for conservatives or liberals. Although justices do not necessarily conform to the political expectations of the presidents who appoint them, the increasing scrutiny of Supreme Court nominees makes the chances of surprise much less likely than in the past. All of the six justices appointed after David Souter in 1990 have conformed quite well.

The prospect of judicial appointments is therefore a natural and legitimate issue for both parties to emphasize during the upcoming presidential campaign. Making the Court into an election issue, however, is a tricky business that has frustrated many previous candidates. Although most presidential candidates during the past several decades have made at least some effort to remind voters of the election’s potential impact on Supreme Court appointments, Richard Nixon and George Wallace in 1968 and Barry Goldwater in 1964 were the last candidates to make the Court a major issue in their campaigns. Part of the problem is that the subtleties of the issues that the Supreme Court addresses do not easily lend themselves to the soundbite format of modern political campaigns. Making the Court into an election has been particularly difficult since the end of the Warren Court era, when the Court’s decisions have been highly diffuse, favoring “liberal” positions in many cases and “conservative” ones in many others. Criticism of the Court is easier if a candidate can latch onto one high profile judicial decision or issue. The Court’s invalidation of the health care law would provide Obama with such an opportunity.

Another problem is that a candidate who criticizes the Court makes himself vulnerable to allegations that he lacks respect for the Court, the Constitution and the rule of law. In 1896, William Jennings Bryan’s criticisms of Supreme Court decisions played into Republican attempts to portray the Democratic candidate as lawless. Similarly, relentless Republican attacks on Robert LaFollette’s criticism of judicial review are believed by historians to have crippled the Progressive candidate’s bid for the presidency in 1924.

The furor over Obama’s remarks last week may therefore substantially impede the president from making the Court into an election issue. In order for Obama to effectively emphasize the importance of judicial appointments, he would need to criticize or at least call attention to specific Supreme Court decisions, particularly if the Court strikes down the health care law. Although it is not inappropriate for a president to express public disagreement with a Supreme Court decision, the political perils of such criticisms were most recently demonstrated only two years ago, when Obama was widely skewered after his State of the Union address expressed temperate and reasonable disagreement with the Court’s campaign financing decision in Citizens United v. FEC. Obama’s remarks at that time were unfairly interpreted as disrespectful of the Court and as tampering with the separation of powers. Even if Obama had not criticized judicial review recently, Republicans would almost certainly used any criticisms of judicial decisions by Obama during the campaign to underscore their portrayal of the president as a dangerous radical. Obama must now tread even more carefully. His poor choice of words may impede later efforts to call attention to the importance of judicial appointments. This is sad since judicial appointments may be this year’s most important election issue.

William G. Ross is Professor of Law at the Cumberland School of Law at Samford University in Birmingham, Alabama, where he teaches constitutional law and legal history. Ross has published numerous works on separation of powers issues. His website is williamgeorgeross.com.

Suggested citation: William G. Ross, Obama’s Comments and Challenges to Judicial Review, JURIST – Forum, Apr. 11, 2012, http://jurist.org/forum/2012/04/william-ross-judicial-review.php.