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 again, there are cries of the arro­gant Pres­i­dent as self-​​appointed King:

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.

Related arti­cles

• Oba­macare and the Rel­e­vance of Mar­bury v. Madi­son(cop​pellpi​anoshop​.word​press​.com)

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• What Obama can learn from Roosevelt’s Supreme Court(glob​alpublic​square​.blogs​.cnn​.com)

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• Opin­ion, Or Man­i­festo? Judge Slams High Court’s Eco­nomic “Sur­ren­der”(forbes​.com)

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• What’s Obama Think­ing? Wickard, not Mar­bury(pjme​dia​.com)

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• The Pres­i­dent, the Supreme Court, and the Epic Bat­tle Over the New Deal (tpulle1​.word​press​.com)