Historical Precedents for Criticism of the Court

Adam Liptak does great work covering the Supreme Court for The New York Times, and his piece today about Barack Obama’s very public criticism of the Citizens United decision is worth a read. But I want to provide a little bit of context for this paragraph:

Presidents have mentioned the Supreme Court only rarely in State of the Union addresses, usually to make a general point or to note the nominations or retirements of individual justices.

For post-World War II presidents, that is true. But as Jack Balkin noted yesterday at the legal blog Balkinization, in his 1937 address Franklin D. Roosevelt went far beyond criticizing a particular decision—he faulted the Court’s entire framework of constitutional interpretation, and singled it out as an obstacle to political progress. This passage comes at the conclusion:

The United States of America, within itself, must continue the task of making democracy succeed.

In that task the Legislative branch of our Government will, I am confident, continue to meet the demands of democracy whether they relate to the curbing of abuses, the extension of help to those who need help, or the better balancing of our interdependent economies.

So, too, the Executive branch of the Government must move forward in this task, and, at the same time, provide better management for administrative action of all kinds.

The Judicial branch also is asked by the people to do its part in making democracy successful. We do not ask the Courts to call non-existent powers into being, but we have a right to expect that conceded powers or those legitimately implied shall be made effective instruments for the common good.

The process of our democracy must not be imperiled by the denial of essential powers of free government.

That sounds not too different, actually, than what some of our current president’s impatient liberal supporters were hoping he would say about the Senate, which has become an obstacle to his agenda in much the same way the Court was to Roosevelt’s. So when they say Obama’s no FDR…

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Greg Marx is an associate editor at CJR. Follow him on Twitter @gregamarx.