Balkinization  

Thursday, April 12, 2012

What is the most effective way for a president to challenge the Supreme Court?

JB

Over at the Atlantic, I discuss the current calls for President Obama to "run against the Supreme Court" as well as recent calls for rethinking judicial review.

I point out that "running against the Court" is an undertheorized concept, and that careful attention to historical examples shows that successful presidents in modern times have not, in fact, directly run against the Court, nor have they challenged the Court's power to review congressional legislation.

Instead, successful presidential candidates who challenge the Supreme Court have woven their criticisms into a larger narrative in which the Court plays a comparatively minor role. In particular, successful candidates have argued that the Court has had hindered important and popular social reforms. They have associated the Court with far less popular political opponents, and they have successfully portrayed the Justices as out-of-touch or as out of step with core American values. Last but not least, they have promised to use the appointments process to reshape the Court's doctrines, restore a correct interpretation of the Constitution, and redeem it from judges who have confused their political preferences with what the Constitution truly means.

I conclude by considering how President Obama might employ these time-tested strategies in the 2012 election.

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