In the media excitement over his use of the word “gay”–an inaugural first–few noticed that President Barack Obama had used the occasion of his second inaugural address to attack the Supreme Court for the third time.
The president’s remarks were not just an endorsement of gay rights, but a clear indication as to how the Court–whose members were in attendance–ought to rule on the two gay marriage cases it will hear this term:
Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law–for if we are truly created equal, then surely the love we commit to one another must be equal as well.
Note that Obama could have, but did not, announce that he would propose federal legislation to reinforce his newfound belief in gay marriage. His remarks were aimed at the Court itself, and suggested that if they ruled differently than he wanted them to, they would place themselves outside the “journey” of the American people.
The president has attacked the Court on two previous occasions. One attack came during his State of the Union address in January 2010, during which he upbraided the Court for its holding in the Citizens United case. The other came shortly after oral arguments in last year’s Obamacare case, when it appeared that the Court was likely to overturn the legislation (and indeed may have decided to do so, with one vote later changing sides). On that occasion, President Obama suggested that the very power of judicial review was illegitimate.
No president since Franklin Delano Roosevelt has sought a direct confrontation with the Court over current controversies. Roosevelt’s assault on the Court, while ultimately successful in convincing it to uphold much of his subsequent New Deal legislation, alienated members of his own party who opposed his court-packing plan.