Commentary Magazine


The Harvard Law Review Must Be Aghast

In the ongoing debate over Obama’s attack on the Supreme Court, the president seems not to be faring all that well. Politico’s forum on the subject contains a range of criticisms. They fall into several categories.

First, it was arrogant and careless of Obama to call out the Supreme Court – and not get his facts right. Dan Perino observes: “Misrepresenting a complicated legal opinion is dicey — but doing so in a prime-time address to a nation where the authors of that opinion are in the front row leaves you rightly exposed to criticism.” The president and his minions have gotten used to their sheltered existence and being immune to criticism. You can almost hear them reassuring themselves, “It’s not like one of the justices is going to object!” Well, he did, and that’s what comes from assuming the president can be cavalier with the truth.

Second, it was rude to berate the Court in public, treating the justices as errant political functionaries rather than interpreters of the Constitution. Larry J. Sabato, hardly a fire-breathing conservative, makes some unfavorable comparisons:

Mr. Obama’s blunt attack on the Court’s ruling, with the members sitting in front of him, was no doubt stunning and unsettling to some, and it contradicted his frequent calls for bipartisanship and civility. It also reminded me of President Andrew Jackson’s remark that, “Chief Justice Marshall has made his decision. Now let him enforce it.” Others may have remembered Massive Resistance and the disrespect shown to earlier Courts when they made unpopular rulings about race.

And third, Obama is playing with fire — and talking nonsense when he dares Congress to “respond” to a First Amendment ruling with legislation. This was not a statutory interpretation — as was the Equal Pay Act, which begat the Lilly Ledbetter legislation — that is amenable to a legislative fix. In such a case, the Court says, “We think the statute says X.” The Congress is then free to say, “No, we really meant Y, and here’s the amended law to make that explicit.” What sort of legislative response would there be to “The First Amendment does not permit limits on corporations and unions exercising core political speech”? Boston College law professor Richard Albert explains:

By emphatically urging Congress to pass a bill reversing what he views as the Supreme Court’s misguided judgment–”a bill that helps to right this wrong,” in the President’s own words–the President undermined two sacred institutions in American constitutional government: the separation of powers and judicial independence.

A University of Virginia Law School professor asks whether Obama is seriously entertaining the view that Congress should “challenge the Supreme Court’s ruling and its constitutional interpretive supremacy.” We don’t know, because Obama, one suspects, doesn’t take what he’s saying seriously. He’s simply inciting the mob.

In all this, one thing is rather clear: Obama has harmed himself. In playing fast and loose with the facts and the law, he has diminished not the Court but himself. He seems to prefer Huey Long to Lawrence Tribe as his role model. His elite university pals and media sycophants who marveled at his Harvard-honed intellect and supposed temperamental superiority must be shuddering.