In the wake of the Supreme Court’s oral arguments on the Affordable Care Act, President Obama has said that a decision overturning the law would be an “unprecedented, extraordinary” move. The response to this straightforward assessment of Constitutional law has been a storm of criticism from both conservatives and mainstream media. While some have said that the President is wrong to criticize the judiciary at all, others merely question the political wisdom of his comments. According to the latter, the President “can’t run against the Supreme Court.” I personally don’t think this is true — as I’ve said all week “the two Presidents most associated with challenging the authority of the Court are Jackson and FDR and they both got what they wanted and ended up on currency” — but the more interesting question that no one is asking is “can the GOP run for the Supreme Court?”
For every electoral ploy there must be an equal and opposite ploy. For Romney to make an issue of President Obama’s criticism of the Court, Mitt cannot just rip Obama but must be prepared to defend the Court and the entire judiciary. This makes the President’s strategy much more logical because there is almost no chance that the GOP can give full-throated support to the Court.
First, the Court is simply not as popular as it once was. The last public polling on the Supreme Court’s popularity was taken in October 2011, and showed that the Court’s approval had fallen to 46%. And this poll was taken before the Court ruled that we can all be strip searched on demand! Just how unpopular is the Court? Current polling suggests that even the President’s embattled administration has higher approval ratings than the Court.
Would Romney come to the defense of a flagging institution? Romney is unpopular enough and desperately needs to avoid any electoral albatross. He’s already saddled with the House of Representatives, and he strives to avoid linking himself to Boehner or Cantor (though he did defend Paul Ryan while campaigning in Wisconsin). Worse yet for Romney, the Court’s approval rating among Independents is a meager 44%. Romney’s hope in the election is to capture Independents and defending the Court appears a poor strategy for that goal.
In fact, we’ve already had a preview of the GOP failure to defend the Court. Obama used the 2010 State of the Union Address to attack the Citizen’s United decision, and despite their best efforts, conservatives found it impossible to leverage this into a successful knock on the President. There’s just no traction in defending the Court.
Second, joining the fray on the side of the Court would require conservatives to forfeit their long-standing complaint against judicial activism. What makes the outrage over President Obama’s comments so confusing is that conservatives have run against the judiciary for years. When writers such as Jon Meacham act as though this is a “unique” attack, he ignores the conservative “judicial activism” trope and the consistent criticism of “overreach,” especially on social issues.
“Judicial activism” has always been a cynical political jab. Conservative judges have draped bold activism under legitimizing language such as “originalism.” For example, there are few decisions more fraught with unfettered activism than the conservative majority’s opinion in Bush v. Gore, a decision so divorced from existing precedent that the decision explicitly commands that it never be cited as precedent itself. But nonetheless, it has been a staple of GOP campaigning and fundraising.
President Obama sought to steal this argument by saying:
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
Ruth Marcus chided the President for adopting this language, but on the contrary this move neuters any GOP response. Any attempt to defend the Court is now draped in the poisoned language of activism that conservatives themselves have spent decades creating. While this distrust of the judiciary may be unhealthy over the long-term, it’s certainly not a bad political move for the President.
Finally, defending the Supreme Court forces Mitt Romney to face the issues that he so desperately wants to avoid — Abortion and other social issues. To defend the legitimacy of the Court implicitly defends abortion via Roe v. Wade and gay rights via Lawrence v. Texas. It implicitly defends Griswold v. Connecticut, the contraception decision that was assumed to be safe law before this primary season saw the GOP launch a string of attacks on contraception. Romney has shown extreme discomfort when forced to own social issues. Not only is he uncomfortable taking conservative stances on these issues, but whenever he does it reminds the GOP base that Romney was previously pro-Choice and pro-Gay Rights. Defending the Court should make the GOP wonder just where Romney stands.
This issue will come to a head when the Supreme Court ultimately rules on the constitutionality of the Affordable Care Act, but there’s good reason to believe that Obama’s criticism of the Court is not the political misstep that the conventional wisdom suggests.