Recently President Obama made this remarkable statement, “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.” For someone reputed to be a former professor of Constitutional Law at the University of Chicago this statement is hard to explain. Any high school student in a sophomore American History class knows there are many precedents for the Supreme Court making laws passed by Congress null and void. As a matter of fact, in the system of government tradition has delivered to us overturning laws as unconstitutional has been an important power of the Supreme Court for more than two hundred years.
And if the primary content of the President’s statement isn’t strange enough the supporting information is wrong. Obamacare wasn't passed by a strong majority in Congress. In reality the final vote in the House vote was 220 to 215. Every Republican and thirty four Democrats voted against the law. In the Senate the vote was sixty Democrats and Independents voting for and thirty nine Republicans voting against. The Democrats, even though they controlled both houses of Congress knew they would lose enough of their own members that it was going to be a close vote so they moved the bill outside the regular order of business and used a legislative maneuver known as reconciliation to avoid giving the Republicans the opportunity to filibuster the law.
What is the context of these current pressure tactics being used by the executive branch on the judicial branch?
Soon after taking office in 1829, President Andrew Jackson a long time Indian fighter spearheaded one of his signature pieces of legislation through Congress: the Indian Removal Act. This act gave the president the power to negotiate treaties with the various tribes which still existed in America East of the Mississippi. These treaties, often accepted either under duress or under questionable circumstances seized the lands of the tribes and forced them to move West to the Indian Territory in what is today Oklahoma. The time for fighting had passed and most of the tribes quietly left their ancestral lands.
One tribe decided to try another route. The Cherokee Nation had adopted the ways of the Europeans. They devised their own written language and wrote their own Constitution. They had their own plantations, printing presses, and businesses. They also had their own lawyers and instead of going on the warpath as their ancestors had done they went to court to fight the orders from the State of Georgia which dispossessed them of their land.
In two cases; Cherokee Nation v. Georgia (1831) and Worcester v. Georgia (1832), the United States Supreme Court considered whether or not it had the power to enforce the rights of Native American nations in disputes between them and the states. In Cherokee Nation v. Georgia, the Court ruled that it lacked jurisdiction to review the claims of any Indian nation within the United States. In Worcester v. Georgia, the Court ruled that only the Federal Government not the states, had the power to regulate the Indian nations.
What the ruling in Worcester v. Georgia meant was that Georgia could not legally seize the Cherokee lands. It was at this junction when referring to the majority opinion written by Chief Justice John Marshall that President Andrew Jackson made one his most famous statements, “Mr. Marshall has made his decision. Now let him enforce it!” Instead of enforcing the ruling the Federal government joined in and the result was the Trail of Tears as the Cherokee lost their lands and moved west.
Franklin D. Roosevelt legislating Keynesian economic philosophy in the New Deal sought to end the Depression through government spending and central control. With massive majorities in both houses of Congress the president’s agenda was enacted as quickly as possible. Then less than three years after the New Deal began to transform America the Supreme Court began overturning some of the central portions of Roosevelt's program
In response to this resistance to his vision for what should be done FDR decided to pack the court with Justices who would support his laws. What he proposed was that for any justice over the age of seventy who refused to retire, the president could appoint a new justice to sit beside the current justice and do his work. If his plan had been adopted and none of the then current Justices retired he would have been able to appoint six new Justices. Since he couldn’t force the conservative justices to retire he sought in this way to outnumber them and thus change the ideological complexion of the court. As the president moved ahead in his attempt to pack the court the Supremes started ruling in his favor which eventually stopped the need for his effort to influence the court through overwhelming appointments. Then time and attrition did what he had tried to do with legislation. By 1941, four justices had retired and two had died consequently by the end of his presidency seven of the nine justices were Roosevelt appointees.
Now we come full circle to President Obama and his obvious attempt to belittle and intimidate the court. Should anyone be surprised? This is nothing more than standard operating procedure for a Chicago politician. It is also a normal technique for a community organizer who has been trained in the tactics of Saul Alinsky. No, we shouldn’t be surprised but we could have expected more of anyone who has been entrusted with the highest office in the land. It is just such crude strong-arm tactics such as this which open Mr. Obama up to charges of being a typical South Chicago thug. If he wishes to avoid such charges he needs to avoid such actions.
The above brief review clearly shows that this was not the first attempt of a president to influence the court. However coming from one who is constantly extolled as a constitutional scholar it is certainly disquieting. As a constitutional scholar the president would obviously know what he said was incorrect leaving no other interpretation to his words than a conscious effort to alter the traditional system of checks and balances and the power relationship between the separate branches of the federal government.