Only 52 percent of the American public has a favorable opinion of the court, down from 64 percent three years ago and a high of 80 percent favorability in 1994, Pew reported on Tuesday. The Supreme Court is still more popular than Congress (by far) and President Obama (by a slimmer margin), but its popularity is no longer in the stratosphere — and that may open the door to attacks by the president as he runs for reelection.
Two major cases before the Supreme Court address important pieces of Mr. Obama’s record — his reform of the health-care system and his opposition to Arizona’s law cracking down on illegal immigration. If the court rules against his positions on either or both cases, a real possibility, Obama will face a decision on how, if at all, to address the court’s actions on the campaign trail.
Early in April, Obama fired a warning shot across the bow of the court, which had recently heard three days of argument on the Affordable Care Act.
“Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected congress,” Obama said at a press conference with the president of Mexico.
“And I would like to remind conservative commentators that for years what we have heard is that the biggest problem is judicial activism and that an unelected group of people would somehow overturn a duly constituted and passed law.”
The remarks unleashed a firestorm of criticism that Obama, who once taught constitutional law, might not believe the Supreme Court has the right to determine the constitutionality of a law. His spokesmen offered reassurances that he does understand the role of the high court, and he has not made similar comments since.
But by making that statement even once and repeating language more often heard from conservatives — that the justices are “an unelected group of people” –he showed no hesitation, in the heat of a presidential campaign, to go after the branch of government usually seen as above politics.
Obama also drew flak for attacking a Supreme Court ruling in his 2010 State of the Union address. The court had recently ruled on the Citizens United case, which opened the floodgates to unlimited outside money in support of political campaigns. Obama aimed his barbs right at the conservative justices sitting before him.
Presidential attacks on the Supreme Court for political gain are not without precedent. In 1937, after the court found elements of the New Deal unconstitutional, President Franklin Roosevelt went to Congress with a plan to “pack the court” with more pro-New Deal justices. He failed.
For Obama, running against the Supreme Court — or at least its conservative justices — could be risky. While American faith in the nation’s institutions is on the decline, the high court remains relatively popular. But if his signature legislative accomplishment, health-care reform, goes down totally or in part at the hands of a conservative court majority, he may find it too tempting a target to pass up.
The Pew poll was conducted between April 4 and April 15, right after Obama had made his Rose Garden remarks warning the court. But the survey found little partisan difference in the views of the court. Fifty-six percent of Republicans held a favorable view of the court, while 52 percent of both Democrats and independents were favorable.