IN his State of the Union address, when President Obama criticized the Supreme Court, Justice Samuel Alito shook his head, scowled and mouthed a two-word dissent: “Not true.” Chief Justice John Roberts, meanwhile, smiled serenely, apparently untroubled by the president’s attack.
Now we know what Chief Justice Roberts really thinks.
Last week, he fired back, describing the scene as “very troubling.” The chief justice painted a harrowing picture of “one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering while the court — according to the requirements of protocol — has to sit there expressionless.”
The White House, for its part, seems eager to resume hostilities. Robert Gibbs, the press secretary, retorted that what was really “troubling” was Citizens United v. Federal Election Commission, the 5-to-4 ruling that President Obama criticized in his speech. Mr. Gibbs and his colleagues may feel emboldened by a recent poll showing that 80 percent of the public opposes that decision, which swept away restrictions on spending by corporations in political campaigns. Following the White House’s lead, Democratic strategists are portraying conservative justices as beholden to business interests. It has become the opening salvo in the battle over the next Supreme Court nomination — even before a vacancy occurs.
This sort of presidential push-and-shove with the judiciary is unlike any since the 1930s, when Franklin Roosevelt waged a very public battle with the court’s conservative majority over the fate of the New Deal — a fight that culminated in Roosevelt’s plan to enlarge and pack the court. The White House tends to welcome comparisons between Presidents Obama and Roosevelt. But in this case, it is an analogy to avoid. Roosevelt’s court fight makes clear just how much Mr. Obama stands to lose in any such protracted struggle.
Beginning in 1935, in one decision after another, the conservative justices on the Supreme Court struck down New Deal programs, rejecting the underlying notion that governmental power should be used to remedy society’s ills. Roosevelt, in response, accused the court of dragging America back to the “horse and buggy” era and creating a “no man’s land where no government — state or federal — can function.”
In his 1937 State of the Union address, Roosevelt warned the court to toe the line, bringing Democrats to their feet in wild applause. (To his disappointment, all nine justices, in a break from precedent, boycotted the speech.) One month later, the president made his audacious proposal to increase the number of justices from 9 to 15, and to fill the new seats with liberals.
Roosevelt was not the first president to spar with the Supreme Court. A number of reform-minded presidents — Thomas Jefferson, Andrew Jackson, Abraham Lincoln and Theodore Roosevelt among them — had complained that the court was wrongheaded or reactionary. But none carried the fight as far as Franklin Roosevelt did, or paid as dearly for it. Congress defeated his proposal to expand the court. And though the court did reverse itself in 1937 — in the middle of the Senate debate on the president’s plan — Roosevelt had split the Democratic Party, reawakened the opposition and undermined his second-term agenda.
The Obama administration should keep this in mind as it escalates its war of words with the court. Even though most Americans agree with the president’s position on campaign spending by corporations, the political upside of attacking the court may be short-lived. It is one thing for a president to forcefully disagree with a decision. But to engage in a public back-and-forth with the chief justice is fraught with risk. Arguments with the Supreme Court are, as one magazine put it in 1936, “packed with the most deadly dynamite,” for at least three reasons.
First, the Supreme Court is highly resilient. While Americans are often unhappy with it — and can be quick to complain that its members are politically or ideologically driven — the institution is consistently held in higher regard than either of the “political” branches of government. The judicial robe confers a kind of exaltation on nearly everyone who wears it. Judicial sanctity may be a myth, but it is a powerful one; it reinforces our hope that this really is a government of laws, not merely of fallible human beings.
Second, justices are not easily intimidated. Granted life tenure by the Constitution, they are untouchable except by impeachment. In the 1950s and ’60s, as the Supreme Court greatly expanded civil rights and strengthened civil liberties, billboards appeared across the South that said, “Impeach Earl Warren.” But the chief justice and his brethren were unbowed. They knew that only one justice had ever been impeached — Samuel Chase, in 1804 — and he returned to the bench after the Senate acquitted him.
Of course, the Supreme Court does not operate in a vacuum. Justices are human, and are open to influence by public events and political pressure. Roosevelt was convinced that in his fight with the Supreme Court he “lost the battle but won the war,” because one justice finally yielded, swinging the court with him. Similarly, intense criticism of Bush v. Gore, the decision that awarded the 2000 Florida vote to George W. Bush, seems to have had a moderating effect on two members of that majority, Sandra Day O’Connor and Anthony Kennedy, at least for a time.
If the Roberts court, like the court led by Charles Evans Hughes in the 1930s, continues to defy popular opinion as flagrantly as it did in Citizens United, Americans might well turn against it. There is a very real chance that the court, as now composed, would strike down key elements of the Obama agenda — health care mandates, for example, or financial reform, or new environmental regulations — if they find their way onto the docket in the coming years. In that event, progressives might well erupt in protest; Congress might be tempted to curb the court.
Even so, it would not behoove President Obama to lead the charge. Roosevelt’s experience suggests that to personalize the conflict is to allow it to define, and possibly consume, a presidency.
And the argument will not be one-sided, as Chief Justice Roberts’s comments make clear. Although justices have historically been loath to comment on political controversies, Chief Justice Roberts appears less reticent than most of his predecessors — with the exception of Chief Justice Hughes. As Congress debated Roosevelt’s court plan, Hughes swiped at it in speeches and demolished it, point by point, in an open letter to the Senate. The president is not the only one with a bully pulpit.
THE third danger for President Obama in picking a fight with the court is that it will allow his critics to portray him as unconcerned with the independence of the judiciary and eager to consolidate power in his own hands. The White House may be tempted to shrug off these concerns. But President Obama, like Roosevelt before him, is finding out just how real such fears are for some Americans — and how easily his opponents can exploit them. What Roosevelt really wanted, according to a leading Republican at the time, was a court that listened to its “master’s voice.” Many progressives and moderates, despite their allegiance to Roosevelt, came to share that suspicion.
Roosevelt might have avoided his spectacular mistake if he’d listened to his wisest advisers. As he prepared his plan to pack the court, they counseled patience, telling him that the only sure way to change the court’s direction was to change its members when vacancies occurred. Roosevelt didn’t listen — but President Obama should.
The court’s change in direction in 1937 endured because Roosevelt was ultimately able to replace nearly all the justices with his own appointees. If Justice John Paul Stevens retires at the end of this term, as many analysts expect, Mr. Obama will have the chance to make his second appointment. But even then, he will have to wait for an opportunity to shift the court’s balance of power. Patience, in the face of pressing national challenges, is hard. But change, as is now amply clear, does not come quickly.