President Obama and his supporters have had a turbulent relationship with Supreme Court. It reached a low point when he said that striking down his massive health care overhaul — which he said “was passed by a strong majority of a democratically elected Congress” — would be an act of illicit “judicial activism.” Though the president later backtracked, his allies continue to lament the prospect that the Supreme Court will do its job — most recently in a Chicago Tribune op-ed penned by House Minority Nancy Pelosi this week.
The episode harkens back to a nasty chapter in legal history: the clash between the Court and President Franklin Roosevelt during the 1930s. Fortunately, today’s Americans are unlikely to welcome a repeat of that confrontation, and President Obama would be wise not to try impugning the High Court, as Roosevelt did.
FDR’s fight with the Court began after the justices struck down some of the New Deal’s largest components. It is well to remember how absurd these programs were: in Schechter Poultry v. United States, for example, the justices invalidated a law that barred grocery shoppers from choosing which chicken they wanted — buyers were forced to reach into a cage and pick a random chicken, the idea being to protect farmers from having to charge less for scrawnier birds. That law — like other programs forcing farmers to destroy food to raise prices — was meant to boost farmers’ income, but it meant less food for everyone, an awful idea in the depths of a Depression, and one that overstepped constitutional boundaries. The Constitution only allows Congress to regulate interstate commerce — not to control prices at neighborhood farmer’s markets.
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