President Obama made a big mistake in his State of the Union according to the view suggested by "Justices Will Prevail," an op-ed by former Clinton speechwriter, screenwriter, and author Jeff Shesol. With the Justices in attendance, the President criticized a recent and unprecedented Supreme Court decision that allowed corporate officers to use corporate treasury funds to oppose or support political candidates. The decision lets a few corporate executives use vast corporate resources (other people's money) to support those who favor their views and oppose those who do not. The decision threatens to hugely alter the political landscape and vastly to increase already excessive corporate influence.
It is an appropriate subject for criticism. But the column implies that Democrats would make a mistake if they criticize the increasingly pro-corporate stance of the majority of the current Court. It invokes FDR's unsuccessful effort to expand the Court's membership.
Shesol's column is all about strategy. It ignores questions of substance: Does the Court decision threaten to further corrupt the democratic process in ways that may be almost impossible to undo? Is the Court majority biased in favor of corporate interests? These serious questions get no attention.
Even viewed through the lens of a myopic focus on strategy, the column is grossly misleading.
First, criticizing an awful Court decision is hardly like FDR's so called "Court packing plan." Instead the president is urging lawmakers to consider legislative action to mitigate the damage, an entirely appropriate subject for a State of the Union speech.
Second, it is hardly radical for a president to criticize a particularly terrible Court decision. Candidate Lincoln did it with reference to the Dred Scott decision -- again and again. And Lincoln even referred to his criticism again in his inaugural address -- with the author of the opinion (Chief Justice Taney) sitting nearby. Lincoln thought that by opening the nation's western territories to slavery, the Dred Scott decision would expand the grip of an already too powerful slave power, a power that, as Lincoln correctly saw, threatened liberty and democracy. The Court's Citizens United decision also threatens democracy and liberty.
Third, Shesol warns that Chief Justice Roberts may continue to fight back. If Justice Roberts continues to complain about criticism, or to threaten to boycott these speeches, or decides to defend the decision, or to make speeches against proposed legislation, well that is up to him.
Shesol cites FDR's failed Court expansion effort to prove that criticism of the Court is risky. It is true that FDR lost political capital in that fight. But the Court also changed direction. Contrary to expectation it did not strike down the National Labor Relation Act, the Fair Labor Standards Act, and a host of other New Deal measures. At last, Congress could ban labor by little children in coal mines, furniture factories, and cotton mills. The Court's shift was followed by the resignation of the Court's most intransigent opponents of progressive legislation. FDR lost a lot, but the Court changed direction, even before he had any new appointments.
Advice to Democrats not to talk about the Court's pro-corporate tilt ignores American history from 1964 to 2008. In 1964, Arizona Senator and Republican presidential nominee Barry Goldwater attacked the Warren Court, and in 1968 candidate Nixon took up the fight. In his 1968 acceptance speech Nixon warned that "some of our courts... [a clear reference to the Warren Court and others following its lead] have gone too far in weakening the peace forces as against the criminal forces...." Again and again, President Nixon suggested that the Warren Court had been enforcing its policy preferences, not the Constitution. He would fix this by appointing "strict constructionists." Later Ronald Reagan and his Attorney General Ed Meese took up the cry--with Mr. Meese and his press secretary even attacking decisions requiring states to obey the Bill of Rights. Indeed, Republican attacks on Court decisions have continued through the last election.
What was the result? Attacking the Court did not hurt Republicans. From 1968 to 2008, Republicans held the presidency for all but twelve years. And Republican presidents changed the Court.
Should Democrats criticize the Court's strong shift toward corporate political power? If the criticisms have merit, yes they should. These are issues voters need to think about.
The President is unlikely to change the minds or direction of the majority of the present Court. But a variety of presumptively constitutional laws could help to fix the problem. Nothing in such proposals threatens an independent judiciary.
In any case, valid criticism can help to focus the mind of the country on what is at stake, and that may help to change the Court in the long run. That was Lincoln's goal. It should be ours.
Michael Curtis is the Judge Donald Smith Professor of Constitutional and Public Law, Wake Forest University School of Law. Author, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights and Free Speech: The People's Darling Privilege.