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April 02, 2012

Should Obama Run Against the Supreme Court?

Jon Meacham: "On a human level, presidents who have to fight and claw their way to shape public opinion, pass legislation, and then try to implement their policies must be mightily tempted to make a hostile Supreme Court a target to energize the base. But history shows that Obama should resist the temptation. There are subtle ways to make the point about a given court's seeming hostility to your agenda and still win over highly informed independents in swing states who tend to decide elections. The big thing experience shows is that you should not declare war on the court. More in sadness than in anger, just mention the issues where you feel stymied by the justices. From health care to campaign finance, those independent voters will get the message without being frightened off by an unsettling rhetorical attack on the judiciary. That's what FDR got wrong. Obama may well have a chance to get it right."

But Rick Hasen suggests a strategy of running against the court could work this time. He notes that "by 2016, Justice Scalia will turn 80 and Justice Kennedy will turn 78. If a Republican wins in 2012, Scalia and Kennedy will probably retire before the end of that first term. That would give the new Republican president the chance to entrench the five-justice Republican majority for decades -- and to cement it, by replacing Kennedy with a wholly reliable right-wing vote."


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