Wishful thinking on behalf of Obama? New York Times White House reporter Jackie Calmes fancies that criticizing the Supreme Court might be a winning issue for Democrats for a change, in Thursday's "Court's Potential to Goad Voters Swings to Democrats ."
For decades, Republicans have railed every four years against the Supreme Court and its perceived liberal activism to spur conservatives to elect presidents who will appoint like-minded justices. Now strategists in both parties are suggesting this could be the Democrats’ year to make the court a foil to mobilize voters.
The prospect arises both because of President Obama’s comments this week implicitly warning the court against striking down his signature domestic achievement, the expanded health insurance law, and because of recent court rulings, chiefly the Citizens United campaign finance decision, and looming cases on immigration and affirmative action that incite passions on the left.
Calmes offered no criticism of the president trying to work the refs by criticizing a Supreme Court for a decision that hasn't even been made yet, while reducing conservative constitutional philosophy to sound-bites:
Republicans, by contrast, have made it an issue since Richard M. Nixon, running in 1968, denounced the Warren-era court for liberal rulings on social issues and criminal procedures, and made phrases like “judicial activism,” “legislating from the bench” and “strict constructionism” presidential-year perennials for conservatives.
Calmes brought up the Citizens United decision, considered a horror story for liberal activists but a free-speech victory for conservatives, which "allowed corporations and individuals to give unlimited sums of money to support independent campaigns on behalf of political candidates."
What makes the Citizens United case resonate with Democrats and some independent voters, party strategists say, is its fit with many Americans’ sense that the political system, including the conservative court, favors corporate and special interests.
Calmes found a liberal law professor insisting his colleagues still think the Supreme Court will uphold Obama-care, and saying that even if not, the issue would help Democrats in the November elections:
Noah Feldman, a professor at Harvard Law School, said “the smart money” among legal scholars was on the court’s upholding the health care law. But if the law is overturned, he said, the court is certain to be a major issue in the presidential campaign.
Together with decisions like Citizens United, he said, “that would add up to a real pattern of conservative judicial activism, of a kind that will really be unprecedented since the New Deal.”
Mr. Obama made that argument on Tuesday to a convention of newspaper editors, seeking to clarify his much-criticized comment on Monday that it would be “unprecedented” for the court to strike down a law.
But the comment from Obama, a former part-time law instructor at the University of Chicago was more than simply "much-criticized." It was flat-out false. A fact-check from USA Today  pointed out that "overturning unconstitutional laws has been part of the Supreme Court's job description for more than two centuries....The first precedent for overturning a law...was in 1803 when the high court declared a portion of the Judiciary Act of 1789 to be unconstitutional. That was the landmark case of Marbury v. Madison."