Strategic decisions made in the heat of a Presidential campaign can have disastrous long-term consequences. Apparently some in Democratic Party, and the President’s reelection team, are considering the idea of attacking the Supreme Court if it overturns the individual mandate or the entire Affordable Care Act.
The idea that the President, a Harvard Law School graduate and former constitutional law professor, might attack the court is bad enough. This is the kind of person who would be most expected to understand the role of the court and the deference it is due. If he doesn’t support the court, why should the average person give the court any support not enforced by police power?
For liberals in general, reduced support for the court’s decisions could be a disaster. Many of the gains made in on the liberal agenda in the last 90 years have come with the help of the courts. They have been accepted because the public believes that some degree of deference is due the court.
The legal gains in the civil rights movement were the result of a combination of court action and legislative action. The court’s Brown decision was a milestone in the civil rights effort. Bussing and Affirmative Action were supported and often driven by the courts. Support for the actions of Presidents Eisenhower, Kennedy and Johnson in upholding court decisions depended on public deference to court decisions.
The end of prayer in schools and the ability to force removal of Christmas scenes and crosses from the public square has been unpopular in many quarters. It is easy to imagine what would happen if the public would cease to defer to the courts. Would any local politician risk a career to support the ruling of a body which the President feels free to attack?
The court’s ruling in Roe v. Wade is extremely unpopular in some quarters. Arguably, it is a major reason for the social conservative movement and the increased strength of the Republican Party. A court which is constantly under political attack would have seen such a ruling largely ignored.
The movement for LGBT rights has been largely conducted in and through the courts. State courts have either ordered legislatures to revise laws or given cover to legislative changes. The public has, in more than 30 referenda, voted against same-sex marriage. The decision of California voters on Proposition 8 stands a good chance of being directly overruled by the courts.
One could argue that the tide is changing and public support is growing. The counter argument would be that people have decided to stop fighting the courts and worry about other things. But would the court be able to move opinion in a climate where its actions have no support?
When courts ordered state legislatures to rewrite laws about marriage, there was limited opposition. The prevailing attitude of deference to court decisions led many legislators to accede to the demand. If the assumption of deference is reduced or eliminated, why would legislators buck public sentiment to follow the courts? Why not just impeach the judges and be done with it?
In the November 1996 issue of First Things, Richard John Neuhaus, Robert Bork and others argued the Supreme Court had taken authority it did not have and turned the Constitution into an amoral, if not immoral, document. While the issue stirred controversy, the principle of deference remained. Those who opposed the court’s actions worked to elect a President who would appoint justices with a different opinion, but the deference principle held.
The future composition of the court will be an important factor in the decision of many voters. The candidates will make clear their differences in the types of justices they intend to nominate. This does no harm to the principle of deference.
But attacking the court is very different. If a sitting President in the heat of a re-election campaign makes the court a target then all who have opposed judicial independence have a free reign. Does President Obama want his legacy to be that he diminished the power of the courts? It would put him in a league with the late Robert Welch, the founder of the John Birch Society, who endlessly put up signs calling for the impeachment of Earl Warren.