By Joe Murray
When it comes to the Supreme Court, just a handful of presidents have had the guts to make a stand.
Andy Jackson stuck his thumb in its eye, FDR threatened to pack it, Abe Lincoln ignored it, Teddy Roosevelt wanted to put its opinions to a vote and Tommy Jefferson said its unbridled power would create a “despotism of an oligarchy.”
In the wake of his solicitor general’s dismissal defense of Obamacare, Barack Obama appeared destined to join a select few that had dared to question the power of the nine unelected men (and women) in black. He did so to try to save what many see as the impending defeat a healthcare plan that has defined his presidency.
“Ultimately, 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,” Obama said.
Headlines popped up pitting Obama against the Supremes and hinting that Obama was trying to strong-arm justices. Republican lawmakers who have long decried an activist judiciary now decried Obama’s remarks (which pale in comparison to Jefferson). Remarkably, the 5th Circuit Court of Appeals – which serves Mississippi – demanded that a sitting president explain himself.
Let’s be clear – if any federal court had demanded Andrew Jackson to explain himself his response would have been a request to duel. For it was Jackson who, in the aftermath of a Supreme Court decision he opposed, quipped, “John Marshall has made his decision; now let him enforce it!”
FDR, too, would have laughed at the 5th Circuit. Frustrated with an activist court that was carving apart his New Deal, FDR threatened to add more justices to the bench to crowd out those he did not like. The response from the Court? A green light for FDR.
Obama, a former constitutional law professor, proved he was not fit to join the ranks of these men. Soon after his mild rebuke of the Court, Obama’s backpedalling was causing major waves on the Potomac. Press Secretary Jay Carney took to the podium to declare Obama’s love for the Court and Attorney General Eric Holder made it clear that Obama not only bows to Saudi kings, but to the lowly 5th Circuit as well.
Though a minority view, the idea that the Supreme Court cannot strike down laws of Congress is not radical. While the Supreme Court has the authority to strike down State laws that conflict with federal law, such power was never meant to extend to acts of Congress.
It is Congress that holds hearings on the laws and it is Congress that is held accountable for the passage (or defeat) of the law. Moreover, if Congress gets it wrong, Congress is the body of government that can quickly fix its error; it took the Court over half a century to fix “separate, but equal.”
Obama had a chance to challenge the Court and turn the unpopular issue of healthcare into the popular issue of judicial restraint. He could have rallied all Americans – liberals and conservatives alike – behind him as he challenged a Court that has gotten too big for its britches.
Rather than proving himself worthy of an association with those presidents who defied the Court and lived to fight another day, Obama has, once again, caused many to question whether he has what it takes to lead the nation.
JOE MURRAY is a civil rights attorney with a practice based in Ripley and a former columnist for the Philadelphia Bulletin. Contact him at firstname.lastname@example.org.