Constitution Daily

Smart conversation from the National Constitution Center

Tonight: Obama's judicial audience

January 24, 2012 by Lyle Denniston


Editor's note: as President Obama delivers his State of the Union Address tonight, the National Constitution Center will host a viewing party and will be live blogging on Constitution Daily.

2011 State of the Union. Photo by Chuck Kennedy.

Of all the people who crowd into the Capitol for tonight's State of the Union address, few will have as much power to influence President Obama's political future as the handful of spectators wearing black robes and sitting silently in a front row. On entering the House chamber, the president no doubt will make his way along that row and shake hands with the Supreme Court justices who have chosen to attend. It will be a moment of cordiality, but it may not last.

Two years ago on this occasion, in a memorable confrontation that made some of the justices feel like unwelcome guests, the president chastised them directly for a decision that would unleash corporate spending in American elections. Tonight, the president will go to the podium well aware that many millions of corporate dollars will be poured into campaign ads aiming to defeat him in November.

But he also will know that his own political fortunes may depend, to perhaps a considerable extent, on winning some of the most important Supreme Court decisions to come down in generations. Those decisions will be emerging just as this year's campaign unfolds, and thus will become a part of a national referendum on what might be called "the state of the Constitution" and the growth of government power in Washington.

While the justices profess not to hold grudges, it would be understandable if some of them smile inwardly tonight, knowing that some of the Obama administration's most important policy goals now await the Court's response. As best they can, of course, the justices will leave personal feelings out of deciding those cases, and there is not a shred of evidence that any will be decided with the aim of influencing this year's election.

But influence it, they almost certainly will. What the Court decides this year on the President's most important domestic initiative – the massive new health care law – will fit right into the political debate over how to divide up government power between national and state levels. So will its forthcoming decision on states' power – over the Obama administration's objection – to pass aggressive laws that have the specific aim of driving undocumented immigrants out of those states.

And, before President Obama's current term ends, the Court may well hear a broad constitutional challenge by a number of state and local governments to history's most important civil rights law, the Voting Rights Act of 1965 – a law that the Obama Justice Department is vigorously enforcing as a vital tool in ensuring voter equality. In fact, the Court itself has some doubts about the constitutionality of Section 5, and it referred to them again last Friday as it ordered a federal court in San Antonio to reconsider a decision to set aside new legislative redistricting maps in Texas that are far more favorable to Republicans than to Democrats.

It is possible, of course, to exaggerate the prospect for confrontation and hostility as the president and his advisers watch the Court's work on the big cases currently before it or on the way. The disagreements between Court and White House are nowhere near as rancorous as they were on January 6, 1937, when President Franklin R. Roosevelt delivered his second State of the Union message.

Faced with a string of Court rulings striking down his New Deal efforts to cope with the Great Depression, Roosevelt was even then preparing the final outlines of his "court-packing" plan, essentially to remake the Supreme Court so that the remainder of the New Deal would survive. But in addressing the State of the Union that day, Roosevelt made a thinly-veiled assault on the Court.

"There is little fault to be found in the Constitution," Roosevelt told his audience (which did not include any Supreme Court justices, who apparently opted not to attend).  The difficulties, the president added, "have grown out of its interpretation....It is not to be assumed that there will be a prolonged failure to bring legislative and judicial action into closer harmony. Means must be found to adapt our legal forms and our judicial interpretation to the actual present national needs of the largest progressive democracy in the modern world."

Barely a month later, in February 1937, Roosevelt revealed those "means": the plan to add six new Justices to the Court if there were no retirements among the present nine.   (As that plan emerged, Roosevelt's Interior Secretary, Harold I. Ickes, showed how bitter the administration had become, writing privately to a friend that "all that is left to do now is to declare that the Court is infallible.")

The decisive failure of the Roosevelt plan, of course, has ruled out such drastic responses to Supreme Court rulings that presidents do not like. But, as Mr. Obama showed two years ago, the "bully pulpit" is still open to propagate presidential complaints about the need to bring the Court into "closer harmony" with government aspirations.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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