May 6, 2012 - By Carl LeubsdorfThe possibility that the Supreme Court could throw out some or all of President Barack Obama's landmark health law in the midst of the presidential campaign has prompted premature calculations of the political impact of the potentially complex decision.
That prospect also has been greeted with some surprise because, as Obama noted this week, the measure has been deemed constitutional by two conservative Republican appellate judges as well as others who were Democratic appointees.
Still, given the historical background against which this case is being considered, no one should be surprised.
The fight parallels another battle some 70 years ago between a liberal administration seeking to use government to benefit a large segment of the public and a conservative Supreme Court wary of endorsing such powers.
Indeed, the comparisons are striking between the health care fight and the epic battles of the 1930s in which a conservative Supreme Court filled with Republican appointees, dubbed by critics as the "nine old men," blocked a half dozen of President Franklin D. Roosevelt's major initiatives.
Both Roosevelt and Obama came to power as a result of electoral uprisings fueled by economic collapses under Republican administrations. Both initiated far-reaching economic measures -- Roosevelt even more than Obama -- that were decried by opposition Republicans and ran headlong into a GOP-dominated Supreme Court.
That's because each inherited a Supreme Court with seven Republican appointees among the nine sitting justices, reflecting the GOP's domination of the presidency from 1860 to 1932 and from 1968 to today. Though not monolithic in their thinking, the majorities on both courts represented the traditional conservative stance of limiting the federal government's powers. That ensured a clash with the Democratic administrations.
For Roosevelt, it came on a series of cases in which 5-4 court majorities threw out key New Deal initiatives. For Obama, many analysts concluded that the justices' comments during last month's arguments on the health law presaged a likely similar division, though others cautioned such judgments might be premature. But the current court has previously shown its ideological predilections by sanctioning free-spending super PACs and restricting local anti-gun laws.
Roosevelt's initial political reaction was interesting. He largely bypassed direct criticism of the court in his triumphant 1936 re-election campaign, concentrating his fire on "economic royalists" threatened by the reforms of the New Deal. But as soon as the election was over, he undertook a frontal but ill-conceived assault to reduce the power of the court's conservatives by proposing to allow the appointment of new justices for each of the six over 70.
His "court-packing" plan failed dismally, but the fact that Roosevelt had been re-elected ultimately achieved his goals, both in influencing the court and ultimately in allowing him to appoint liberal justices at a time when a nominee's ideology played little role in the confirmation process. By the end of his record 12-year tenure, Roosevelt had named eight of the court's nine members and laid the basis for a generation of liberal judicial domination.
Obama signaled his likely political reaction recently when he said that a court decision overturning the health law would be an "unprecedented extraordinary step," an overstatement in view of the fact he is surely familiar with what happened in the 1930s. He is in a far weaker political situation than Roosevelt, his presidency approved by barely half of the electorate and the overall health law by even fewer.
Still, if the law is rejected in part or in whole, Obama may have little choice politically but to include the Republican justices of the court in his election strategy of waging a "them-vs.-us" battle in which he brands his foes as defenders of the wealthy and opponents of middle class fairness.
After all, as Roosevelt showed, the single best way to influence the future of the Supreme Court is to stay in office long enough to name friendly judges, even if the difficulty of gaining Senate confirmation in today's climate means they would have to be less safely ideological than he or any other president would prefer.
Editor's note: Carl P. Leubsdorf is the former Washington bureau chief of the Dallas Morning News. Write to him via e-mail at: firstname.lastname@example.org.
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