President Obama's puzzling-at-best dismissal of the Supreme Court's power of judicial review got rotten reviews all last week.
One of the president's former law students questioned his understanding of constitutional history.
Americans have begun to doubt the bright, clean, articulate president's previously unquestioned ability to elevate the intellectual state of our nation just by pronouncing common words almost as well as George W. Bush.
But was Obama being stupid like a fox with his misstatements? In the Washington Times, Wesley Pruden thinks so:
Even a community organizer knows that the authority of the Supreme Court to determine whether acts of Congress conflict with the Constitution is well and truly established…
Republican politicians, pundits, lawyers and academics who leaped to lecture the president on the finer points of the Constitution missed by a mile the point of his rant. Mr. Obama's rant was not meant for Republican politicians, pundits, lawyers and academics. He was talking to his congregation and his choir, building a fire under them and giving them an advance look at talking points for the campaign to come if the Supremes kill or wound Obamacare. He's more than willing to sound dumb and ignorant in the greater cause of his re-election.
He actually appropriated battle-tested language of assaults on earlier Supreme Courts, berating "judicial activism" of "an unelected group of people" trying to "somehow overturn a duly constituted and passed law." The president had clearly been reading about the campaign to "Impeach Earl Warren" on billboards and bus-stop benches in the wake of the desegregation rulings a generation (and more) ago. These billboards flourished like azaleas in April along highways and byways across the South.
No one actually expected to see the chief justice dispatched in shame and ignominy, but the vision of such a spectacle, cultivated by segregationist politicians in Richmond and Birmingham and Little Rock to keep hope alive, propelled white voters to the ballot box to preserve the politicians. Maybe this court's conservative majority could be demonized, too.
As always with Obama, you can't find the answers just by going back to the fifties. From his recession-deepening "recovery" act to his increasingly apocalyptic class-warfare rhetoric to his fondness for war, Obama models himself on Franklin Roosevelt. The rhetorical war on the Supreme Court has to be viewed in this context.
While FDR's court-packing scheme gets all the attention, the relevant issue here is his verbal attack on the court following the Schechter decision in 1935. That war of words helped propel FDR to the first of his three re-election wins.
In this sense Pruden is right. A fight against the Supreme Court, however vacuous, is enough to rally the base. As I argued a while back, that's really all Obama needs to do in what will almost certainly be a low-turnout, low-enthusiasm election.
So far, in fact, the president's demagoguery did agitate the constituencies that matter most: the pro-Obama media, the even more pro-Obama media, and Europeans (who, let's face it, are just more soignée than we are). Judging by my Facebook feed, he's doing a pretty good job of getting his rank and file followers to mouth the appropriate slogans as well.
But I think Pruden is missing a piece of good news in all this. Obama has also demonstrated the limits of propaganda that was perfected in the era of totalitarianism. It was easy for FDR to make a crude campaign against the court stick because (sorry, Greatest Generation) Americans back then were across the board less educated and less skeptical, and they had access to a universe of information so small that, by the standards of 2012, it can barely be said to have existed.
Last month, an ABC News/Washington Post poll indicated nearly 70 percent of Americans believed the Court should strike down the individual mandate or the entire PPACA. A Kaiser Family Foundation poll also showed majority belief that the mandate was unconstitutional. I don't read too much into that. (Among the many ways we're smarter than our ancestors is that we're more skeptical of opinion polling.) But if you had taken a similar poll taken in 1935, the majority of responses to a question about judicial review and constitutionality under either the commerce clause or the necessary and proper doctrine would have been "Huh?" That Obama is out of his depth just shows again that he's everything Bill Clinton wasn't: inflexible, intellectually lazy, and tied to a vision of America the rest of the country stopped caring about decades ago.
Title explanation: Hi Ho, Steverino, now and forever.