Written by Robert S. Becker   

What’s a vexed, reactive incumbent to do when his best-laid plans go awry, put upon by lying hordes after his job, then that pugnacious posse at the Supreme Court (SC)? Of course, hark! find a sure-fire insurance policy. How about a unilateral, pre-emptive sortie against the black-robed gang of five Supremes that pays off with protection, if not leverage, come what may?

After all, we’re beyond counting how this Court embarrasses itself (and America) by anti-democratic, throwback rulings, and like the old days on the wrong side of history. On top of all, slick, fast-talking shills fronting as impartial judges echo anemic rightwing FOX slogans. Fretting over fantasy broccoli commands cheapens the debate, the law, and notions of justice.

True, Obama will feast more by eviscerating the Ryan budget, but bashing the Supremes is a good opening act. Yes, let’s indict villains who smile and smile while strip-searching away our health care options. Forget life, liberty and pursuit of happiness when curable maladies strike home.

Curiously, a sensible campaign tactic was mangled by this smartest-dumb president since Clinton. Certainly, this White House braced for questions about the judicial jujitsu hurled against “Obamacare” a week ago. But why then dismiss the universe’s most powerful, least accountable officials as “unelected,” irrelevantly doubting their legitimacy? Was Obama covertly, maybe unconsciously, backing public referendums on SC picks? Doubtful, but it’s not the most ridiculous thought experiment I’ve ever heard. For sure, we’d not endure that multiply-challenged Clarence Thomas had he been on a national ballot. Would such formalities do any worse than putting Thomas, Scalia and Alito on a single court, let alone today’s parody of impartiality?

The Senate Elects

Actually, Obama’s snide dig is doubly misguided: justices are in fact “elected” by Senate voting (in committee, then full), a method that filters some (but not enough) like Robert Bork. Was Mr. Diplomacy implying we might un-elect (read: impeach) obnoxious judges because they dare scorn insurance reform? Leftwing cranks salivate at impeachment chatter, if only to remind entrenched untouchables there are systemic remedies, in theory. Banish that folly, as likely as proving Obama was Kenyan-born. And yet, threatening Thomas and Scalia is a straightforward House option, far simpler than decades to pass formal amendments on health care.

Back to reality. Okay, so our ex-law instructor-in-chief declares his utter (though hardly warranted) confidence this Court will not veto, as civilization itself lies in the balance. Let Obama badger extreme Supremes for his implied complaints carry low risk. Yet why then fudge on reality twice, as Obama fantasized Court rejection of bills “passed by a strong majority of a democratically elected Congress” would be “unprecedented”? Say what? Frankly, I’d expect such nonsense from W., or Rick Perry, or Washed Out from Wasilla. Strangely, Obama sounded as weird as his sometime rightwing allies, ready to burst forth on the intolerable chorus of "tyranny from activist judges” destroying America. Look, at least there’s been no reinstatement of torture or restrictions on the vote to white, old men. Yet.

Though increasingly bereft of sane checks and balances, our system boasts judicial vetoes – and this very SC did that even to W. over lawless military tribunals, an anti-terrorism favorite with much greater Congressional majorities than Obamacare. Questioning such intact roles as judicial review is what we’d expect from law instructors at Liberty University, not the first-rate University of Chicago (disclosure/confirmation: my old teaching haunt).

Fringe Bashing a Winner

But kudos, nevertheless, to the Campaigner-in-Chief for picking a fight he can, well, fight, and more inspiringly than rolling over and playing dead. Of course he had to retrace all wayward slanders the next day and this, too, will pass: stupid over history, as Rethug goons daily prove, doesn’t equal stupid politically. It’s a winning play for him: if the Court approves his health package (or most of it), his bold leadership and cajones empower his bully-challenged pulpit. When, however, the bill gets thrashed, or gutted, bingo, Obama spends the summer railing against rightwing negation, stalemate and mayhem. And defies Lord Scalia with this question: “What sort of country lets super-rich insurgents ravish the uninsured and the sick, among others”?

Out of the phone booth, Obama discards the milquetoast image by road-testing his born-against fighting spirit. Having given away true health reform (single-payer), he’s shoring up shattered pieces. Of course, Scalia anticipated Obama’s mangled logic with his own, fretting with great folly that any government that penalizes citizens for not buying insurance will force the consumption of broccoli. Charles Fried, Reagan’s conservative solicitor general, shot down Scalia's trumpeting of “the most tendentious of the Tea Party arguments.” The whole “broccoli argument is beneath contempt,” he added, “To hear it come from the bench was depressing.”

He’s depressed? What about poor slobs strip-searched after a speeding ticket? I am beyond depressed this kennel of White House legal beagles oversees unindicted citizen-assassination programs, let alone that Obama’s Justice Department filed legal support for the horrendous SC strip-search fiasco. The rich people’s government now pigeonholes everyone else as enemies of the state. That threatens my personal and civil rights far more the quibbling over whether “unelected” justices will or can reject weak medical reform.

Linked to the Ryan fiasco

Significantly, Obama’s anti-court squawk was only one of two strikes that kickstarted his re-election campaign. Forceful indictments assailing the Ryan budget as unfeeling Social Darwinism, shredding all-important, all-American social programs, took apart this "Trojan horse." Throw in the blatant disgrace of the war against women and Obama has a triplet that dramatizes all that is mean-spirited, dysfunctional and inhumane across the Republican disease. It’s not as if this president is bursting with bunker busting wins (great first-term achievements) to secure his second term. Even if most of the Affordable Care Act passes muster, only parts have majority endorsement. And 2012 looks meager for victories.

When you’ve got lousy political products to resell your tarnished brand – and up pop Romney, Gingrich, Ryan, Thomas and Scalia as fodder – pragmatists without ideology have no other options than pre-emptive assaults. I only wish this White House and this president would learn and then demonstrate greater mastery of the art of politics and swaying public opinion, let alone distorting what the SC does for a living. Well, we all know the best thing about unforced, embarrassing blunders – the infinite potential it offers for self-education, change, and reform. But, alas, waiting for that Godot is like expecting health insurance to escape SC surgery.

Note on SC History: Multiple Regression

In fact, not only has every Supreme Court exhibited myopia towards progressive legislation, the narrative legacy testifies to chronically taking the wrong side of history. Despite helpful modern decisions (school desegregation, civil rights, abortion), Supreme Courts represent the most unevolved, wrongheaded branch of our government. Considering our worst, most racist senates, that’s no small triumph. Strip-searching, Citizens United and appointing W. president aside, disgraceful Courts approved slavery across the land while denying the federal income tax, child labor laws, New Deal recovery, post-Watergate campaign finance law, victim compensation after gender-motivated violence, and landmark age discrimination protections, among many other disasters.

Yes, in 1857 the Court decided Congress lacked the power to exclude slavery from any territory, thus inviting secession. The Court killed the 1875 Civil Rights Act, barring discrimination in public accommodations, such as trains, hotels, and theaters. Congress only spent the next century finding ways to protect core civil and human rights. Denial of the first peace-time income tax (1895) took almost two decades to be remedied, thus the 16th Amendment. In 1908, the SC so restricted railroad unions it took 22 years to gain them collective bargaining rights.

Twice, the backward SC decimated child labor restrictions, requiring 20 years to give children back their childhoods. A 1997 Court threw out a major provisions of a federal gun control law as over-reach, leaving minimal background gun checks to local yokels. That worked, no? And then came the 2000 Florida decision – perhaps its least legally defensible bad decision – topped by last year’s default of election funding to the biggest corporate moneybags, plus, as bad, awarding lifetime employment to every creepy Karl Rove.

Frankly, with this “unelected” SC making unprecedented war against progress, all the more reason to call a Constitutional Convention to save the country. You know, electing SC justices by referendum sounds better and better, alongside a couple of minor impeachment trials. Dream on.