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In a recent article in The Atlantic, First Amendment lawyer Marvin Ammori wrote an argument that Obama should run against the Supreme Court and make it an issue in the 2012 campaign. Starting with reasons not to do so, he quickly comes to the conclusion that Obama should discard those reasons and attack.
The first reason is strategic. Obama’s approval rating stands near 47% while that of the Court is at 46%. Conversely, the approval rating of Congress is 12% He claims that is deceiving in that a 2010 poll indicated that 67% of respondents could not name a single Justice and he attributes this to ignorance on the part of the public towards the Court. Clearly, this is an indictment on civics education in this country, but an indication of general ignorance I think not. Perhaps, the approval rating is 46% despite not naming a Justice because Americans, generally speaking, hold the Court in high regard despite their alleged ignorance. But, Ammori has a plan for that which will be explained shortly. He also notes the Court’s approval rating has dropped 15% over the past decade which he says is because the “Court has become more conservative and political.” Iy may just be that government in general- all three branches- has become less popular and that the Court got swept up in the vortex.
His second reason, summarily dismissed, is propriety. That is, the Court should be afforded the respect it is due since it is the final say on the Constitution. However, he then asserts that anything in politics is fair game for attack and that the Court is political. Naturally, his two smoking guns are two decisions which are stuck in the craw of the liberal mind- Bush v. Gore and Citizens United. At one point, he waxes poetic about the possibility of a Gore Presidency. Like most other liberals, he litigates yet again a decision from the past. In fact, most liberals will assert Bush v. Gore is the point at which the Court lost legitimacy. They remain ignorant of a decision from the 1970s dependent on penumbras and emanations.
At the risk of doing the same, some history is in order. There were actually three decisions from that debacle in Florida in 2000. The first sent the issue back to the Florida Supreme Court which basically ignored the Supreme Court forcing the case back to Washington. The second- and most important- decision found an Equal Protection violation by a 7-2 (NOT 5-4) vote. They then moved to the solution given the time constraints of certifying electors according to Florida law. That was the infamous 5-4 decision that stopped the recount and certified the state for Bush. The minority in that decision believed that the recount could be continued and that there were political, not judicial, ways to get around the Florida law. Breyer’s dissent is especially interesting when he revived the 1876 election of Rutherford B. Hayes as an example of a political solution. That election was resolved through Congressional horse trading where Hayes got the Presidency and the South had federal troops removed, financial help with reconstruction efforts and a Southerner in the cabinet. While railing about the sanctity of votes out of one side of his mouth, his template “solution” involved anything but voting or the will of the people. Ammori also fails to mention that four of the current nine Justices were not on the Supreme Court in 2000.
Then, of course, Ammori launches into the expected attack on Citizens United. But then in a strange twist, he marshals forth his liberal brethren, through the mechanism afforded by Citizen’s United, to begin a concerted advertisement campaign to “introduce” (read: define and disparage) the five conservative Justices. Further, he states that Obama can sit back and reap the benefits of the negativity through plausible deniability. Thus, it would appear, in typical hypocritical, liberal fashion, Citizen’s United is evil if it allows conservative groups and corporations to engage in political speech, but perfectly acceptable if the message advances a liberal cause.
Ammori cites several poll results in his article- approval ratings of the Court, Congress and Obama, the fact few people can name a Justice, 80% disagree with Citizen’s United, 50% of people think that Congress is corrupt. However, he conveniently fails to mention the most important poll figure in the health care reform debate- the fact that 60% of Americans simply dislike Obamacare. Should the Supreme Court strike down the law as Congressional overreach under the pretext of their enumerated powers without any limiting principle on a government predicated on limited and defined powers, they would be striking down, at the end of the day, an unpopular law. He also neglects an equally impressive statistic, better than any poll- the results of the 2010 midterm elections that swept the Democrats out of control of the House. A great deal of that phenomena was motivated by a backlash against Obamacare and the process that spawned 2,700 pages of bureaucracy, mandates, and taxes.
As I was writing this, I thought about how this allegedly political, conservatively activist Court struck down several key provisions of Bush’s war on terror with their decisions in Hamdan v. Rumsfeld and Boudemiene v. Bush. Did Bush chastise the Supreme Court to their faces in a State of the Union Address? Did Bush mangle 209 years of Supreme Court jurisprudence in a Rose Garden hissy fit? Obama could and should take a cue from his predecessor. The fact is that he has made the case for Obamacare only among his ilk, not the majority of Americans. Obama, an alleged constitutional scholar and “law professor,” should aspire to be half the man Bush was. And it makes you kind of thankful the Supreme Court got it right in 2000.