Paul Moreno: The Unhappy History of Running Against the Supreme Court
Mr. Moreno is a professor of history at Hillsdale College and the author of The American State from the Civil War to the New Deal, forthcoming from Cambridge University Press.
By scolding the Supreme Court over its 2010 Citizens United decision and cautioning it against declaring ObamaCare unconstitutional, President Obama is ignoring a lesson liberals and progressives should have learned long ago. None has ever succeeded in galvanizing popular opinion against the courts. In American politics, the goal is not to curb the judiciary but to co-opt it.
A century ago, progressives complained that courts were biased in favor of big business. When the Supreme Court struck down the income tax act of 1894, the Populists and Democrats raged that the court had voided an act passed "in strict pursuance of the uniform decisions of that court for nearly 100 years," as the 1896 Democratic Party platform put it. The platform called on Congress to "use all the constitutional power which remains after that decision, or which may come from its reversal by the court as it may hereafter be constituted." Republicans defended the court and William McKinley won decisively against William Jennings Bryan.
When Theodore Roosevelt launched his New Nationalist campaign in 1910, he resurrected the court issue. TR supported the "recall" of unpopular judicial decisions. He was particularly incensed by a New York State Court of Appeals decision striking down a workmen's-compensation law, saying that the legislature could not assign liability without fault unless the state constitution was amended. The New York legislature amended the constitution in 1913, and that was that...