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(cross-posted at my blog)

Why does the White House appear to be picking a fight with the Supreme Court over its 5-4 ruling in Citizens United?  The President's comment at the State of the Union was talked about for days (perhaps because of Justice Alito's reaction), and the White House seemed to treat the Chief Justice's recent comments as an opportunity to strike out again, rather than something needing a defense.

The White House is beginning to put public focus and pressure on the Supreme Court before its conservative ideologues radically change US law by overturning long-settled law or striking down his own initiatives.  And to lay the groundwork for its own nominees.

Obviously, the White House wins this argument every time they engage it; the Citizens United decision was unpopular.  But why make the justices mad?

Background - The Court and the Federalists:

Four of the current Supreme Court Justices (Scalia, Thomas, Alito, and Roberts) are members of the Federalist Society, which argues for very narrow limits on government powers as granted by the Constitution.  While this may sound benign, this activistargumentis developed primarily in response to Roosevelt's New Deal, which brought us out of the Great Depression, and to Johnson's Great Society program that extended the safety net that Roosevelt started.

Many on the extreme right have claimed for decades that the Great Society programs should be declared unconstitutional and many in the Federalist Society share that view.  Most make this argumentprimarily on moral grounds, often while campaigning for Republicans, but this is why remaking the Court has been such an important GOP goal over the years, and why liberals were right to be concernedabout it.

Perhaps more importantly, the far-right and the Federalist Society often argue that federal regulations are a form of unconstitutional "takings" by the government, in addition to most other right-wing causes.

After a 2001 Federalist Society program called "Rolling Back the New Deal," Richard Epsteinopined, "The New Deal is inconsistent with the principles of limited government and with the constitutional provisions designed to secure that end...Most of economic regulation is stupid.... What possible reason is there for regulating wages and hours?  If my takings doctrine prevails, you have no minimum-wage laws. That's fine. You'd have an OSHA a tenth of the size. That's fine too...."

Public pressure

The Supreme Court is generally perceived to not be positively swayed by public opinion.  This ignores the fact that the justices are people.  

Public pressure may even have been counterproductive in the past; many credit Justice Thomas's rigid conservatism to his bruising confirmation process (though I believe it's not fair to Thomas to claim he is motivated only by spite).  In fact, Thomas is one of the conservative justices that entered the court with a honed ideology that was unlikely to be swayed by public opinion.  Unlike Souter or Kennedy, whose legal philosophies could evolve over time, the Federalist Society justices all have a rigid philosophy to follow, and, it can be argued, a specific agenda.

Which brings us to Kennedy, the swing vote.  While it is possible that the White House could anger him by attacking his vote in the Citizens United ruling, they have apparently been careful to avoid mentioning him, or any of the justices, by name.

If Obama has been clear about anything it is that he believes that political change only happens when people can be rallied to support it.  I think we are seeing the start of this now.

Justice Thomas's wife Virginia's recent involvementwith a Tea-Party group only underscores that the administration is correct to make the Supreme Court a political issue now.

Now - What about the law?  

Jeffrey Toobin's recent profileof Justice Stevens shows a Court that has changed dramatically over the years.  As the article states, "William Rehnquist was no liberal, but he did not lead an attack on the court's past."

Even though there are dozens of speeches and papers outlining the need for it, many Federalist Society writers argue that the New Deal and Great Society aren't likely to be rolled back.  This may or may not be true.  It seems highly unlikely that such an organization would spend so much effort arguing for something that they do not believe is possible.

On the other hand, a tremendous amount of energy has been spent by Republicans arguing that the Health Care Reform bills are unconstitutional.  Most of the arguments are just grasping at straws in order to slow things down ("deem and pass" has been used manytimes by both parties, etc), but legal challenges will begin the day the bill is signed.  They are being put in place now.

But they aren't elected!

Add to the chorus anyway.  I'm no lawyer.  If you are, look at the lawsuits from Idaho, and the one coming from Virginia.  Find their obvious flaws, and let's talk about them.  A lot.

It's harder for judges to legislate from the bench when they're under a microscope.  And attempts to do that won't be popular.  If public outcry can keep any justice from joining with the four in overturning HCR or undoing decades of legal rulings, then the fight the White House appears to be picking will have met its goal.

UPDATE:
Somehow I missed these articles until today.

Jeffrey Rosen:

Obama could gain all the benefits of Court-bashing while avoiding all of the dangers, arguing plausibly that conservatives have betrayed their long-standing principles by using narrow Court majorities to reverse their defeats in the political arena. In this kind of fight, the Roberts Court doesn’t stand a chance.

Dalia Lithwick:

The president is a political actor. When he condemned the result in Citizens United, he made a political statement about what he saw as a political act for purely political reasons. That's what presidents do. It's not Obama's responsibility to worry about attacks on judicial independence. It's his responsibility to govern.

Originally posted to jrcjr on Wed Mar 17, 2010 at 08:58 PM PDT.

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