The country is in crisis. Faced by the worst economic disaster in two generations, a new President with a clear mandate for change rams through a set of controversial economic reforms.
Many Americans oppose the changes. Fearful of change, calling the President a Socialist or Communist or worse, they sue. The first of the economic reform bills make their way to a Supreme Court that is much more conservative than the President. Just months after a triumphant inauguration, still in his first term, the President’s plans are in disarray, thanks to a series of adverse Supreme Court rulings.
The President lashes out, taking what measures he feels are necessary to save his keystone economic programs. He openly criticizes the Court, and the immediate pushback ignites a political firestorm. A political observer, Jeff Shesol, notes: “He didn’t think there was anything in the Constitution that prevented him from doing what he needed to do. The problem as he saw it was not the Constitution; it was the conservatives on that particular Supreme Court.”
As George Santayana, much beloved of conservatives, famously said, “Those who cannot remember the past are condemned to repeat it.” The above events are not current — and yet they are.
In January, 1935, the conservative Supreme Court led by Charles Evans Hughes struck down critical elements in President Franklin D. Roosevelt’s New Deal. Frustrated by the intransigence of the Court and the fact that most of the justices had been sitting on the Court for perhaps far too long, Roosevelt devised a scheme: each of the justices over the age of 70 1⁄2 who refused to retire would get a sidecar justice added to the Court. In 1937, when Roosevelt proposed this, there would have been six Roosevelt-appointed justices added to the Court for a total of 15.
It’s important to note that the Constitution is silent on the number of justices that comprise the Court. The number nine was only set as the definitive number in 1869. In fact, until Marbury v. Madison in 1803, the Supreme Court was not established as the last word in judicial review. Judicial review, a concept we now accept unquestioningly, is actually an extra-Constitutional power.
A coalition of conservative Democrats and Republicans in Congress failed to support Roosevelt’s plan and it died in a Senate committee. The conservative New York Herald-Tribune editorialized:
It was a French King, Louis XIV, who said, “L’etat, c’est moi”—“I am the State.” The paper shell of American constitutionalism would continue if President Roosevelt secured the passage of the law he now demands. But it would be only a shell.
Now it’s 2012. A conservative Supreme Court is considering a President’s landmark legislative achievement — instead of a New Deal, it’s health care reform, “Obamacare”, the Patient Protection and Affordable Care Act of 2010.
Once upon a time there was a decree from the evil King Obama who said, “Everyone must now live in a prison cell and we want the states to build this prison or I’ll send in my evil goons to build it for you. Oh yeah and here’s $54.6 million to help you build your prison.”
The President, frustrated, takes to the airwaves and offers his opinion on the legislation. Looking arrogant in his FOX News photograph (seen below), President Obama said,
I’m confident that the Supreme Court will 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.
This set off a firestorm of conservative criticism. The Fifth Circuit court even ordered Attorney General Eric Holder to complete a homework assignment: a three-page letter explaining the Administration’s position on judicial review — a demand that commenter Jeffrey Toobin called “a judicial hissyfit”. Toobin went on to say that “some of these Republican judges are just deranged by hatred of the President”. On the other side of the argument, Will Cain of The Blaze called this an unprecedented attack on the judiciary: “It’s hard not to see that as some sort of influence, warning, intimidation.”
Toobin didn’t think much of that line of attack. “He can’t threaten – what’s he going to threaten to do? If you rule this way, I won’t – if you rule this way, I’m not going to invite you to a state dinner.”
It’s hard for me to see that a former professor of Constitutional Law offering an unsolicited opinion on the constitutionality of his signature achievement is unprecedented or intimidation. (I would’ve preferred he not exaggerated in using the phrase “strong majority”, though.) Maybe you see it differently, which is why we have a comments section.
- The President, the Supreme Court, and the Epic Battle Over the New Deal (tpulle1.wordpress.com)