UNLESS YOU'RE WILLING TO TAKE ON MARBURY V. MADISON, THEY WIN:

Justices Will Prevail (JEFF SHESOL, 3/15/10, NY Times)

In his 1937 State of the Union address, Roosevelt warned the court to toe the line, bringing Democrats to their feet in wild applause. (To his disappointment, all nine justices, in a break from precedent, boycotted the speech.) One month later, the president made his audacious proposal to increase the number of justices from 9 to 15, and to fill the new seats with liberals.

Roosevelt was not the first president to spar with the Supreme Court. A number of reform-minded presidents — Thomas Jefferson, Andrew Jackson, Abraham Lincoln and Theodore Roosevelt among them — had complained that the court was wrongheaded or reactionary. But none carried the fight as far as Franklin Roosevelt did, or paid as dearly for it. Congress defeated his proposal to expand the court. And though the court did reverse itself in 1937 — in the middle of the Senate debate on the president’s plan — Roosevelt had split the Democratic Party, reawakened the opposition and undermined his second-term agenda.

The Obama administration should keep this in mind as it escalates its war of words with the court. Even though most Americans agree with the president’s position on campaign spending by corporations, the political upside of attacking the court may be short-lived. It is one thing for a president to forcefully disagree with a decision. But to engage in a public back-and-forth with the chief justice is fraught with risk. Arguments with the Supreme Court are, as one magazine put it in 1936, “packed with the most deadly dynamite,” for at least three reasons. [...]

THE third danger for President Obama in picking a fight with the court is that it will allow his critics to portray him as unconcerned with the independence of the judiciary and eager to consolidate power in his own hands. The White House may be tempted to shrug off these concerns. But President Obama, like Roosevelt before him, is finding out just how real such fears are for some Americans — and how easily his opponents can exploit them. What Roosevelt really wanted, according to a leading Republican at the time, was a court that listened to its “master’s voice.” Many progressives and moderates, despite their allegiance to Roosevelt, came to share that suspicion.