Presidential campaigns against the Supreme Court
President Joe Biden, seeking a second term, is running against the U.S. Supreme Court. Keenly aware of the Court’s declining approval ratings, the growing storm of concerns surrounding the ethics of some of its members, and the national outrage stemming from decisions that overturned precedents protecting voting rights and reproductive rights, Biden believes he has found an issue that resonates with American voters.
Throw in the Court’s recent ruling that presidents possess breathtaking immunity from criminal prosecution – a declaration, as Justice Sonia Sotomayor stated in a dissenting opinion, that places the nation’s chief executive above the law – and Biden has a stump speech that will travel across 50 states. There is something in it for everyone.
The strategy of running against the High Court for its constitutional failings, grounded on the premise of general unhappiness with the behavior of the Court and its rulings, is familiar and effective. In 1968, Richard Nixon, a former two-term vice-president under President Dwight D. Eisenhower and an unsuccessful candidate for the presidency in 1960, unleashed vigorous attacks on the Court in his presidential campaign. He criticized the Warren Court for being soft on communism and soft on criminals, and contended that it had granted more rights to those accused of crimes than those who were its victims.
He garnered widespread support throughout southern states when he personally attacked Chief Justice Earl Warren for his opinion in Brown v. Bd of Education (1954), which desegregated public schools, even though he had, while serving as vice-president, publicly defended Warren’s appointment to the Court, and praised his opinion in Brown as good Republican support for equal protection of the laws. Candidates change their minds, knowing that voters’ memories fade.
Nixon’s successful attacks on the Supreme Court took a page from President Franklin D. Roosevelt’s famous reelection campaign against the Court in 1936, which spurred his historic, landslide victory. Roosevelt had denounced the Court, led by what the press characterized as the “Four Horsemen,” the bloc of conservative Justices – James McReynolds, George Sutherland, Pierce Butler and Willis Van Devanter – occasionally joined by Justice Owen Roberts, that delivered a series of rulings in the 1930s that struck down New Deal programs, based on federal authority, that sought to lift the country from the depths of the Great Depression.
Roosevelt and his supporters were furious. FDR attacked the Court for its “horse and buggy jurisprudence,” and accused the justices of inflicting their own political, economic and social preferences on the nation. The Court’s defenders maintained that the justices were not opposed to social legislation, but simply wanted state governments, rather than the federal government, to enact such laws. That contention was eviscerated, however, when the Court, in its final decision in 1936 – Morehead v. Tipaldo – struck down, 5-4, a New York statute that provided a minimum wage law for women and children.
A dozen years earlier, the Court had declared a federal minimum wage law unconstitutional. The Tipaldo decision meant that the owner of the laundry was free to exploit women who worked in his sweatshop. Both the federal and state governments were powerless to stop him. Uncle Sam, it seemed, was tied in knots. An upstate New York Republican newspaper, the Knickerbocker Press, criticized the ruling: “The law that would jail any laundryman for having an underfed horse should jail him for having an underfed girl employee.”
The Tipaldo ruling was profoundly unpopular. Of the 344 newspaper editorials written about the decision, only 10 supported it. Even the 1936 Republican Party Platform criticized it, as did the Supreme Court a year later, in West Coast Hotel v. Parrish (1937). The ruling and the overwhelming public opposition to it, convinced Roosevelt, who had been waiting for popular anger at the justices to reach a fever pitch, to seize the opportunity to make the Court a focal point of his campaign. He declared that the Court had created a “no-man’s land where no Government – State or Federal – can function.” The Court had blocked progress and foiled all governmental efforts to protect American workers, including women and children, in the workplace.
Perhaps the shrewdest president of the 20th century, FDR took the public’s temperature and correctly calculated that the Court’s denial of women’s rights to protection would provide a winning campaign strategy. President Biden is betting that it will again.
David Adler, Ph.D., is a noted author who lectures nationally and internationally on the Constitution, the Bill of Rights and Presidential power. Adler’s column is supported in part through a grant from Wyoming Humanities funded by the “Why it Matters: Civic and Electoral Participation” initiative, administered by the Federation of State Humanities Councils and funded by Andrew W. Mellon Foundation. Adler can be reached at david.adler@alturasinstitute.com.