Legal Commentary

Obama?s ?War with the Court??

By Jonathan H. Adler

On the TNR blog, in an item titled ?Obama?s War with the Court Just Escalated,? Jeff Rosen suggests that President Obama?s criticism of the Supreme Court?s Citizens United decision could be a sign of things to come.

Even more significant is what it says about Obama?s welcome readiness to attack the Court?s conservative majority for its judicial activism in the future. The conservative justices may have calculated that they could strike down campaign finance restrictions without provoking a full-blown presidential backlash. But it takes only a few high-profile presidential attacks to tar a Court as activist in the eyes of history. During the 1930s, the Supreme Court upheld a great deal of FDR?s economic recovery program, but the New Deal Court is remembered today as a group of unprincipled activists because of just a handful of high profile decisions that FDR prominently attacked.

I?m not sure about Rosen?s recounting of the Court?s history ? I think we remember the ?New Deal Court? for approving an expansion of federal power, not for resisting FDR?s initiatives? but it will be interesting to see whether the President seeks to use the Court as a foil for populist political appeals.

Full post as published by The Volokh Conspiracy on January 29, 2010 (boomark / email).