Vital Signs

Obama Versus the Supreme Court

The Supreme Court’s power has become virtually unchecked: Amending the Constitution to reverse an erroneous Supreme Court decision is nearly impossible, and Congress has proved too timid to use the other weapons the Constitution provides to check the Court, including its power to restrict the jurisdiction of the federal courts.  As a result, the Supreme Court has become, in essence, a permanent constitutional convention, and a Supreme Court majority has the power to announce a new interpretation of the Constitution whenever it chooses.  Such a decision will strike down all laws contrary to the new interpretation, however venerable those laws may be and however flimsy the rationale the Supreme Court majority has devised for its decision.

This all used to be widely understood on the American right.  If President Nixon had used the 1974 State of the Union Address to upbraid the justices who had struck down all laws prohibiting abortion the year before, by quoting Justice Byron White’s description of the decision as an “exercise in raw judicial power,” American conservatives would likely have applauded.  But when President Obama used this year’s State of the Union Address to take the Court to task for its decision in Citizens United v. Federal Election Commission by saying that it “opened the floodgates for special interests—including foreign corporations—to spend without limit in our...

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