The Liberal Attack on the Court

To pillory or punish judges for doing their job undermines the legitimacy not just of the court but of our entire constitutional system.

Back in the 1960s, conservatives angry at the Supreme Court's rulings under its liberal chief justice put up billboards with the message: "Impeach Earl Warren." Today, you can order T-shirts and buttons with an updated demand: "Impeach John Roberts."

In fighting a war, the danger is always that you will come to resemble your enemy, adopting his basest tactics purely for the sake of victory. That happens in politics as well, as President Barack Obama and his allies are now demonstrating.

Obama has done his best to undermine respect for the Supreme Court on more than one occasion. After it ruled that corporations and unions have the right to spend money communicating about candidates during election campaigns, he denounced the court for choosing to "open the floodgates for special interests."

He made that claim in his State of the Union address, in the presence of several justices. It was hard to recall a moment in the last half-century when a president had so brazenly challenged the court.

But it was just the first. After the court heard oral arguments on the constitutionality of his health-insurance overhaul, Obama took the opportunity to fire a warning shot: "I'm confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress."

As a former law school lecturer, he is not unaware that overturning laws passed by democratically elected legislators is what the court does all the time—and what it is charged with doing whenever those statutes punch through the limits established by the Constitution.

Later, the White House said he only meant that overturning a law on "a matter of national economic importance" would be unprecedented. Of course, a federal individual mandate to buy health insurance is also unprecedented. So either way, something's going to be done that hasn't been done before.

In any event, Obama's criticism could well have come from a hard-line conservative with a crabbed view of the role of the judiciary. It brings to mind no one so much as the Supreme Court nominee Robert Bork.

He was chosen by President Ronald Reagan but rejected, partly because he was given to decrying the invalidation of laws by "an anti-democratic, indeed a despotic, judiciary" and approvingly quoting G.K. Chesterton: "The liberty to make laws is what constitutes a free people." Maybe Obama would like to steal those lines.

Conservatives, of course, exhibit a strange new respect for judicial review, which they have often reviled for letting unelected elitists ride roughshod over prevailing public opinion. But that's no excuse for Obama to suggest that the court would be acting illegitimately in striking down his health care plan.

Some of his supporters think such a decision would demand stern remedies. Writing in The Daily Beast, University of Houston law professor David Dow urged the use of impeachment if the justices invalidate Obamacare.

This brings back memories of 1970, when House Republican leader Gerald Ford mounted an attempt to impeach liberal Justice William O. Douglas, whom he accused of, among other sins, assisting the "militant hippie-yippie movement."

The effort to remove a justice over allegedly wrong views was an embarrassing failure then and would be again. Congress is not about to use the nuclear option merely because the party in power disagrees with the Supreme Court.

The court has an obligation to use its best judgment to assess the meaning of each provision of the Constitution, a task that leaves plenty of room for disagreement. To pillory or punish judges for doing their job undermines the legitimacy not just of the court but of our entire constitutional system.

There is another way to respond when the court goes against your side: Win elections, appoint your justices and, over time, hope to win the intellectual battle over how to interpret the Constitution and the laws.

That's what conservatives set about doing a generation ago, and the result is a court dominated by GOP-appointed justices who take a different view of constitutional language. Obama and Co. may not like it, but that's exactly how our system is supposed to work.

If they don't like it, they can undertake the same task in hopes of turning the court in a more agreeable direction. No, it's not easy; no, it's not quick; no, it's not a sure thing. Who ever said it ought to be?

Steve Chapman blogs daily at newsblogs.chicagotribune.com/steve_chapman.