Supreme Court is backstop for right

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Conservatives increasingly see the Supreme Court as a last line of defense against the Obama administration’s agenda. 

Despite the court’s 5-4 vote to uphold the president’s healthcare law, the justices have more frequently pushed back at what conservatives see as overreach by the White House.

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A view that the High Court is having more success than the GOP House as a check on President Obama has been developing for some time, but became all the more prevalent after its decisions in the recent Hobby Lobby and Noel Canning cases.

“What we are experiencing is a high court reining in an arrogant president who continues to exercise his unconstitutional overreach in a number of areas,” said Jay Sekulow, the  chief counsel of the conservative American Center for Law And Justice. 

Sekulow added that “the Hobby Lobby’s victory for religious liberty is the latest in a series of stinging rebukes by the high court against the Obama administration. By some counts, President Obama has been on the losing end of some 20 Supreme Court cases during his time in office, outpacing former Presidents George W. Bush and Bill Clinton.”

Claims that the Supreme Court has ruled against Obama a disproportionate number of times are, in fact, hotly disputed.

Rep. Bob Goodlatte (R-Va.), the chairman of the House Judiciary Committee, recently asserted that the Noel Canning decision was “the 13th time the Supreme Court has voted 9-0 that the president has exceeded his constitutional authority.”

Defenders of the administration, and some non-aligned legal experts, insist that argument is exaggerated. Eight of those cases, they noted, revolved around policies that had begun during the tenure of Obama’s predecessor, President George W. Bush. 

Others argue that the frequency with which the Obama administration has suffered defeats is not especially unusual, and that the court in fact has sought to defer to Obama.

“Even in the Noel Canning case, it was pretty deferential to the president,” said Michael Gerhardt, a professor at the University of North Carolina’s law school. “Institutionally, the presidency probably benefited in that case. And, otherwise, I don’t think it is fair to say that the president has been rebuked all that much.”

It may be conservatives’ pessimism about Congress’s capacity to roll back President Obama’s agenda that makes them take heart from high-profile legal victories.

Lawmakers have been impotent as Obama has made changes to the healthcare law on the fly, delaying the employer mandate and creating exceptions to the ObamaCare contraception mandate.

The court, in contrast, has stepped in on hot-button issues such as reproductive rights, freedom of religion and Church-State boundaries.

Dan Holler of Heritage Action noted that the Hobby Lobby decision came after a period when, among grassroots conservatives, “there has been this sense of despair, that no matter what happens, things in DC are stacked against them and it’s very difficult to win. There was a sense that everything was trending the wrong way.”

But “the Hobby Lobby decision changed that for a lot of folks,” Holler added. “They feel there is a way that we can win some of these battles in the courts.”

Liberal groups, of course, see things differently, though they share the impression that the court has sometimes impeded Obama.

“I think that there is a 5-justice bloc on the court that sees itself as an aggressive counterweight to almost everything the Obama administration wants to do,” said Jamie Raskin, a senior fellow at People for the American Way, a liberal group. Raskin was referring to Chief Justice John Roberts and his right-leaning colleagues Antonin Scalia, Clarence Thomas, Samuel Alito and Anthony Kennedy.

Raskin added, “I am certain that none of the justices in the 5-justice bloc would say they are operating from a partisan motivation. That would be anathema to them. But the lines of political philosophy in the court now double as partisan lines. All of the five justices who are slashing into the Obama program are Republican appointees.”

Not all conservatives think the court has been solidly on their side in holding up Obama.

Chief Justice John Roberts, after all, wrote the decision affirming the healthcare law’s legality, leaving a bitter taste for some.

“When Chief Justice Roberts goes out of his way to uphold a statute [as in the ACA case], he is actually expanding the government beyond its constitutional boundaries,” said John Eastman, a founding director of the conservative Center for Constitutional Jurisprudence. 

He said that even when the court rules for conservatives, the decisions “are fairly weak.”

But other conservatives see the court as an ally that is frustrating Obama.

“It is clear that the Obama administration continues to push the constitutional limits on a wide range of topics,” said Sekulow. “It is refreshing to see the Supreme Court remind the president that it takes more than a phone and a pen to govern.”