Bashing the Supreme Court of the United States is a presidential tradition almost as old as the Supreme Court itself. Thomas Jefferson began it when he railed against John Marshall's landmark decision in Marbury v. Madison back in 1803. Just as Barack Obama attacked the same, indispensable principle of constitutional law last week. It's called judicial review, and a country can't have a meaningful constitution without it, that is, if it doesn't have a court to ensure that the Constitution is the supreme law of the land -- and can't be overruled by an ordinary act of Congress.
That essential insight keeps getting in the way of willful presidents. Andy Jackson, perhaps the most willful of them all, made no bones about his determination to defy the court when it interfered with his genocidal plans for the American Indian. ("John Marshall has made his decision; now let him enforce it!")
As he phrased it at his press conference when the subject of his health-care plan and its constitutional chances came up: "For years what we've heard is the biggest problem on the bench was judicial activism or the lack of judicial restraint, that an unelected group of people would somehow overturn a duly constituted and passed law." His health-care law, he said, was just that. So this court better not mess with it: "And I'm pretty confident that this court will recognize that, and not take that step."
To sum it up, as a headline on the front page of the Wall Street Journal did the next day: "Obama Warns Supreme Court/ Says Overturn of Health-Care Law Would Be 'Unprecedented, Extraordinary Step'."
Unprecedented? Extraordinary? Our president, who is said to have taught constitutional law at one point, has got to know better. For the Supreme Court has been overturning laws on constitutional grounds for two centuries now. It must have done so scores of times -- maybe a couple of hundred. Scholars lose count. I've seen the figure 165 bandied about. That's a lot of precedents.
John Marshall was only the first chief justice of the Supreme Court to rule an act of Congress unconstitutional. If any ordinary law, or any ordinary president, could overrule the supreme law of the law, it wouldn't be supreme. There may be a reason they call it the Supreme Court.
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Even before there was a Constitution, while it was still being debated, a feisty commentator named Alexander Hamilton pointed out the inherent logic of the court's authority to uphold it:
"A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents."
Colonel Hamilton's little feuilleton would become Federalist Paper 78. (Newspaper columnists wrote so much better and clearer in his time; the trade has declined considerably since.) John Marshall said much the same thing in his condensed, crystal-clear, and unarguably logical conclusion to Marbury v. Madison. Both documents should be required reading for presidents, and certainly for professors of constitutional law.
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Barack Obama is scarcely the first president to throw a tizzy when the Supreme Court acts like a supreme court. Franklin D. Roosevelt and his brain trust were infuriated when the court threw out their Signature Accomplishment, the National Recovery Act.
That doozy of a law proposed to do to the whole national economy what this administration would like to do to all Americans' health care. In response to the court's overturning their plan, the New Dealers set out to pack the court with their own pet judges. They didn't succeed. Americans have this fondness for the rule of law.
If the court's doubting a law's constitutionality is quite precedented, so is a president's threatening it. What gives Barack Obama's performance a peculiar historical piquancy is that the first black president of the United States should now resort to some of the same arguments, almost the same phrases, made in the infamous Southern Manifesto of 1956, which threatened massive resistance to the court's attempt to enforce the rights of black Americans. ("This unwarranted exercise of power by the Court....")
Our president's scholarly pretensions only add a further filip to his ill-concealed threat to the court. If this president weren't so deaf to irony, he himself might be amused by the spectacle of it.
(Paul Greenberg is the Pulitzer prize-winning editorial page editor of the Arkansas Democrat-Gazette. His e-mail address is email@example.com.)