Jeff Shesol: Why Obama Shouldn’t Campaign Against the Supreme Court
Jeff Shesol is the author of Supreme Power: Franklin Roosevelt vs. the Supreme Court. He is also a founding partner of West Wing Writers, a speechwriting and strategy firm, and the author of Mutual Contempt. From 1998 to 2001, Shesol served as a speechwriter to President Bill Clinton. A Rhodes scholar, he holds degrees in history from Oxford and Brown universities.
Sometime during the next week or two, the justices of the Supreme Court will file through the red velvet curtain of the courtroom, take a seat in their high-backed leather chairs, reconfigure the electoral landscape, and promptly go on summer vacation. Such is the judicial prerogative, and it’s nice work if you can get it. Whether the court upholds or strikes down President Obama’s health-care law, the justices’ work for this term will be done, and the argument over the Affordable Care Act will shift to the presidential campaign trail.
Yet the court itself—not just the ACA or the case that decides its fate—is already an issue in this election, and it might well become a much bigger one. That depends, of course, on the outcome of the case (among others) and how each campaign decides to spin it. For Mitt Romney, this seems a straightforward call: if the ACA survives, in whole or in part, he will renew his vow to repeal it; if the court majority overturns the act, he will use the talking points being tested by supporters like Gov. Bob McDonnell of Virginia. “A victory in court would say that a trend toward big government solutions out of Washington has a limit,” McDonnell has said. Either way, Romney is certain to make the traditional Republican pledge to appoint only judges who won’t “legislate from the bench.”
For President Obama—he who carries the suffix “care”—the political calculus is more complex. Democrats, who are steeling themselves for an onslaught of super-PAC attacks, are fighting mad about the court’s 5–4 ruling in Citizens United (2010), which brought on this baneful avalanche of cash; whether as campaign strategy or catharsis, some on the left, like Rep. James Clyburn, are pressing Obama to run against the court this year. One prominent law professor advises the president to paint the court as badly out of touch with peoples’ lives, and as “just another aspect of a conservatism gone haywire.” A leading First Amendment lawyer urges Obama to make the justices “as disliked as lobbyists”—which is at least theoretically possible, given the steep decline in their popularity. This month, a New York Times/CBS News poll showed that only 44 percent of the public approve of the job the court is doing. “If ever there was a time for the president to run against the court, it is now,” concludes a liberal commentator....