Some were shocked when President Obama took time in his State of the Union speech Wednesday night to chastise the Supreme Court for its recent decision on campaign finance, suggesting this amounted to a violation of some deeply held principle. But presidential attacks on the federal judiciary are as American as apple pie and predate baseball. Abraham Lincoln's first inaugural address declared: "The candid citizen must confess that if the policy of the government is to be irrevocably fixed by decisions of the Supreme Court, the people will have ceased to be their own rulers." Seventy-six years later, Franklin Roosevelt informed listeners that "the majority of the court has been assuming the power to pass on the wisdom of these Acts of the Congress -- and to approve or disapprove the public policy written into these laws."
President Barack Obama's words in his State of the Union address seem mild by comparison. All he said was, "Last week, the Supreme Court reversed a century of law to open the floodgates for special interests -- including foreign corporations -- to spend without limit in our elections. Well, I don't think American elections should be bankrolled by America's most powerful interests, or worse, by foreign entities. They should be decided by the American people."
Our most effective presidents have rhetorically attacked the Supreme Court for good reason. Lincoln inherited a federal judiciary committed to protecting the interests of slaveholders. Roosevelt inherited a federal judiciary whose members were appointed by presidents who believed that the federal government should play only a limited role regulating the national economy. In order to achieve their cherished policies, both presidents had to overcome judicial opposition and waited for deaths and retirements to clear the benches. Thomas Jefferson and Andrew Jackson similarly launched attacks on a federal judiciary that they believed was a threat to programs they had been elected to advance.
President Obama finds himself in a similar position. Americans in 2006 and 2008 overwhelmingly rejected President Bush and the Republican Party's vision of governance. The Supreme Court, however, remains in the hands of conservative Republicans who reject progressive understandings of campaign finance, affirmative action, property rights and the role of the federal government in protecting the fundamental rights of American citizens. If Democrats decide to wait for normal retirements and deaths, and Justice Anthony Kennedy lives as long as Justice John Paul Stevens, President Obama and his political allies will have to win the next four presidential elections to have a chance to appoint a majority of the justices on the Supreme Court. By urging Americans not to take the Supreme Court as the last word on judicial decisions, President Obama is merely doing what other presidents in his circumstances have always done.
Great presidents do not leave the political system in the same condition they found it. Jackson was the first to use the presidential veto as a tool of ordinary policy making. Lincoln frequently acted unilaterally when initiating and fighting the Civil War. Roosevelt was responsible for the administrative state. Great presidents change politics because they recognize that they cannot achieve their goals under politics as usual. New political institutions and practices are necessary to achieve new political visions.
Democrats learned this lesson the hard way in 2009. Progressive efforts were stymied because of ancient procedures. The most important of these was the filibuster, which in effect gave Republicans the power to veto all legislation whenever they can find one supportive Democrat. Now they don't even need that. The Supreme Court has now added another minority veto to the majority coalition the nation elected in 2006 and 2008. To enact his program, President Obama will need to be more than eloquent. He will need to understand, as Jackson, Lincoln and Roosevelt understood, that new progressive visions require new progressive politics. President Obama will need to create a politics of majority rule, not one that permits proponents of the minority party a veto over all national initiatives.
The faint attack on the Supreme Court in the State of the Union Address may be the first shot in the Obama effort to reconstitute an American government capable of passing progressive legislation. If so, Americans can expect to see a strengthening of these attacks, combined with a commitment to fostering rule by a majority, rather than a supermajority, in the Senate. Such would be the approach of a president committed to change. Alternatively, the State of the Union Address may simply be a little bit of rhetoric, a bit of sound and fury, signifying nothing.
Mark Graber is a professor of government and law with a dual appointment at the University of Maryland-College Park and the University of Maryland School of Law. His e-mail is firstname.lastname@example.org.