Will the Supreme Court be more, or less, of a check on the president during an Obama administration?
My guess: Less.
First, as Gene Healy notes, Barack Obama has every incentive to preserve and enhance the power of the president. His “Yes we can!” Justice Department will not be filing briefs with the Court telling it to take the president’s power away.
Second, the judges rumored to be on Obama’s short list for the Supreme Court, like Harvard Law Dean Elena Kagan, are hardly unfriendly to the presidency. As a scholar, Kagan is perhaps best known for her smart, nuanced 2001 law review article, Presidential Administration, which – while differing in many nuanced respects from Bush era legal framework for thinking about executive power – celebrates the president’s power to “jolt” bureaucrats “into action … [for] a distinctly activist and pro-regulatory governing agenda.” She argues that federal courts should interpret the president’s statutory authority in ways that facilitate and enhance, rather than limit, the president’s powers. Look for judicial appointments with similar views.
Third, my guess is that the Supreme Court as a whole, no matter who is on it, is likely to prove more congenial to Obama than it was to Bush. As Neal Katyal argued in the Cato Supreme Court Review, Jody Freeman and Adrian Vermeule expand in the non-Cato Supreme Court Review, and Jack Goldsmith suggests in The Terror Presidency, the Supreme Court’s pushback against the Bush administration is at least partly a response to the Bush administration’s tin-eared and sweeping claims in favor of “inherent” executive power. Even Bush’s Solicitor General, Ted Olson, is rumored to have advised this legal strategy would backfire by alienating the Court.
The Obama administration is likely to be smarter, by inviting the court to uphold various exercises of executive power on a case-by-case basis, rather than based on sweeping claims that the court must cede vasts swaths of decision making to the executive. The court likes the former kind of argument for obvious reasons – it requires the president to check back with the court on an ongoing basis. But don’t fall into the Bush administration’s mindset. A president who presents the court with smart, modest legal arguments for upholding his power don’t have less power. He probably will have more. As Katyal and others argue, the court may be more willing to give the President what he wants when the request is presented in a more modest fashion.
Fourth, remember that Justice Kennedy, the swing vote on the current court, famously votes his politics. My guess is he is likely to side more often with an administration he likes and trusts – and that he will have an affinity for fellow cosmopolitan Obama’s, at least on the foreign affairs and national security front.
I’m guessing, for all these reasons, that those expecting the Supreme Court to continue to act as a drag on the centralization of power in the presidency, as it generally has in the Bush years, are likely to be disappointed in the Age of Obama.