For the past couple of months, Democrats and their pundit allies — apparently expecting to lose on ObamaCare in the Supreme Court — have been engaged in a campaign to delegitimize the high court in the eyes of the public. In a related development, Taliban spokesmen threaten to end polio vaccinations in areas they control unless the United States stops drone strikes.
How are the actions related? They’re self-destructive and futile — borne more of frustration than of any deep thinking.
The idiocy of the Taliban approach is self-evident. But so too is the idiocy of the Democrats’ approach, given even a moment’s thought.
Normally, a political party attacks the Supreme Court when it’s a pillar of the other party’s positions. Thus, President Franklin Roosevelt, having won Democratic control of the White House and Congress, attacked the court as the last redoubt of laissez-faire capitalism at a time when, he said, events had proved that laissez-faire capitalism didn’t work.
Blowback from his failed court-packing scheme aside, that worked pretty well for FDR. In fact, from his time to the present, the Supreme Court has been a bulwark of the Democrats’ policy platform. Unpopular decisions — ranging from Wickard v. Filburn, to Miranda v. Arizona, to Roe v. Wade — have all been supported by reference to the court’s prestige and legitimacy. Even those who believe the court’s decisions unfounded have been encouraged to go along as part of the “rule of law.”
But what if the Democrats’ campaign succeeds — that is, what if Americans are persuaded that the high court is illegitimate? What if its prestige is driven as low as that of Congress? And what if a Republican president decides to take on the court?
For much of American history, conflicts between presidents and the justices have generally ended in the president’s favor. The famous case of Marbury v. Madison, which established the principle of judicial review, also punted the actual merits of the case — a judicial commission that Thomas Jefferson refused to deliver — because the court feared that it couldn’t win in a direct confrontation with the president. In the Civil War, the Supreme Court ceded much ground to President Lincoln. FDR faced resistance at first, but finally wound up with a court that rubber-stamped New Deal policies.
But in more recent times, the court’s prestige has carried the day. President Dwight Eisenhower thought the decision in Brown v. Board of Education ill-advised, but still sent troops to enforce it. And Richard Nixon, faced with an order to surrender White House tapes in spite of claims of executive privilege, chose to resign rather than put up a fight.
Most recently, the Bush administration meekly complied with Supreme Court rulings limiting its powers in the War on Terror despite its belief that the rulings were wrong and an unconstitutional invasion of executive power.
Perhaps these presidents went along because of their sincere belief in the importance of judicial review. But it was also true that conflict with the court would have meant severe political damage, and perhaps political suicide, because far more Americans had faith in the court than in the presidency.
If Democrats, in a fit of pique, delegitimize the court over an ObamaCare defeat, conflicts between future presidents and the court are likely to turn out differently. At the very least, future Supreme Courts will be less willing to confront a president head-on, while future presidents will be more willing to ignore or evade high court decisions they don’t like.
Yet Supreme Court decisions are the source of much of the liberal legal infrastructure for today’s society. So a weakened court might well mean major losses for liberalism in areas like abortion, birth control, criminal procedure and more.
And if, as seems increasingly possible, the next president is a Republican with a Republican Congress, the new administration will be in a stronger position to make sweeping changes without worrying so much about the courts. Might we revisit efforts to ban partial-birth abortion? Limit the rights of criminal defendants? Pass a new, tougher Patriot Act?
If the Supreme Court’s prestige is no greater than Congress’, its role as a check on government will suffer. Is that the legacy that Democrats want ObamaCare to leave?
Glenn Harlan Reynolds is a law professor at the University of Tennessee; his new book is “The Higher Education Bubble.”