All this suggests that Obama should have no hesitation about vigorously criticizing the Citizens United decision–and any future rulings by the Roberts Court striking down his reform agenda, such as challenges to health care mandates or financial regulations. As for the chief justice, the more that he is moved to respond openly to Obama, the weaker he will appear. Even the Court’s most savvy politicians–like Charles Evans Hughes, the former governor of New York and the chief justice who presided over the Court during the New Deal era–haven’t been able to outmaneuver their presidential adversaries. Although Hughes managed deftly to defuse FDR’s Court-bashing campaign, he only accomplished this feat by capitulating to the president’s agenda, writing key decisions that upheld New Deal programs.
The greatest appeal of Court-bashing for Obama is that it can be based on a principled vision of economic populism and judicial restraint. Obama’s guide here should be Louis Brandeis, who would have been appalled by the Citizens United decision. Brandeis denounced the “curse of bigness” that allowed huge corporations to take reckless risks with “other people’s money” and then avoid accountability for their role in provoking economic crises. Brandeis also would have rejected the Roberts Court’s vision of the free-speech rights of corporations: In his view, the purpose of the First Amendment was to make men and women free through reasoned deliberations, liberating them from huge corporations that were too large to be run on a human scale. By embracing a Brandeisian vision, Obama could gain all the benefits of Court-bashing while avoiding all of the dangers, arguing plausibly that conservatives have betrayed their long-standing principles by using narrow Court majorities to reverse their defeats in the political arena. In this kind of fight, the Roberts Court doesn’t stand a chance.
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