Why running against the Supreme Court just might work for Obama

at 03:22 PM ET, 05/24/2012

Some time between now and July 4, the Supreme Court will hand down two rulings — one on the constitutionality of President Obama’s health care law, the other on Arizona’s immigration law — that could have genuine impact on the battle for the White House this fall.


Chief Justice John G. Roberts Jr., Associate Justice Anthony M. Kennedy, Associate Justice Ruth Bader Ginsburg, Supreme Court Justice Stephen Breyer and Associate Justice Elena Kagan attend U.S. President Barack Obama's State of the Union speech on January 24, 2012 in Washington, DC. (Photo by Alex Wong/Getty Images)
The tea-leave reading of how the Court will rule — and, to be clear, this is guesswork at best — seems to suggest that they may well strike down the health care law and uphold Arizona’s measure, a dual decision that would widely be seen as a victory for conservatives and a defeat for President Obama.

In the immediate aftermath of the oral arguments in front of the Court on health care, President Obama issued something close to a challenge to the Justices.

He said:

“I’d just remind conservative commentators that for years, what we’ve heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint — that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example. And I’m pretty confident that this court will recognize that and not take that step.”

That wasn’t the first time Obama broke the (unwritten) political rule of not challenging the Court. In his 2011 State of the Union address, Obama went after the Citizens United ruling, which led Justice Samuel Alito to shake his head in disagreement and so on and so forth.

Now, we’ve long believed that attacks against the Supreme Court are largely meaningless in the context of political campaigns for two reasons.

The first is that no one — or at least very few people — have any sort of working knowledge of the Court. They don’t think about it and, therefore, building a campaign around attacking it is fruitless.

This one chart from the Pew Research Center tells you everything you need to know about the average person’s knowledge of the Court:

So, yeah.

The second reason we’ve long dismissed attacks on the Court is that it is typically one of — if not the — most revered of public institutions. People may hate politicians, Congress and, naturally, the media. But they love them some dark-robed Justices.

Or not. Or at least not as much.

Two national polls released within the last month suggest that the unimpeachably high regard with which many people once held the Supreme Court is slipping somewhat.

In an NBC-Wall Street Journal survey released this week, those people saying they have a “great deal” of confidence in the Court dipped to its lowest point in more than a decade.

Below is a chart detailing the percentages of people who say they have a “great deal” and “very little” confidence in the Court in a series of NBC-WSJ polls since 2000.

And it’s not just the NBC-WSJ poll. In a Pew survey released earlier this month just 52 percent of people said they had a favorable view of the Court — a quarter-century low. (The Court’s high point in Pew polling was in July 1994 when 80 percent viewed the institution favorably.)

There’s lots of potential reasons for the shift toward a more negative view of the Court. As Pew documents, Republicans were more likely to view the Court negatively in 2009 and 2010 as President Obama appointed Sonia Sotomayor and Elena Kagan to the body. And, there has been a general decline in the public’s faith in traditional societal institutions in recent years as everything from the government to Wall Street has struggled mightily.

But, regardless of the reasoning, the declining favorability of the Court does give Obama a potential opening if both the health care and immigration rulings go against him.

In the Pew poll, one in three Democrats said that the oral arguments around the health care law made them less favorably inclined to the Court; just 14 percent of Republicans and 16 percent of independents said the same.

What those numbers suggest is that while running against the Court probably won’t sway undecided voters, it could well be a potent way for Obama to rev up the Democratic base in advance of November.

It seems that in this hyper-partisan political environment even the Supreme Court is fair game. So don’t be surprised to see President Obama ramp up his anti-Court rhetoric if and when they rule against him later this summer.

 
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