Mark Graber (University of Maryland – Francis King Carey School of Law) has posted A Tale Told by a President (Yale Law & Policy Review Inter Alia, Vol. 28, p. 13, 2010) on SSRN. Here is the abstract:
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Part I of this essay makes the case for symbolic politics. Presidents often have political reasons for subjecting courts to mere words. Part II makes the case for constitutional hardball.
And from the paper:
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Whether the State of the Union address and the recent politics of health care are the first of the skirmishes in this political reconstruction is impossible to determine at present. Even in the online edition of a law review, one should avoid making significant inferences on very few data points. President Obama in both his State of the Union address and subsequent actions has behaved differently than during in his first year in office. Still, to paraphrase Justice Scalia, we should be careful not to “mistake” “a fit of spite” for “a Kulturkampf.”70 Whether Americans this year witnessed a new pattern of presidential behavior or merely a desperate effort to pass a bill remains to be seen. Much will depend on how health care is received and on the election of 2010. Indeed, we will not know for a good many years whether we are living in the equivalent of 1932-1936, watching the beginnings of a new constitutional order, or 1838-1841, merely observing the historical equivalent of the Whig hiccup during a period of Jacksonian dominance.
The meaning of Obama’s mild rebuke of the Supreme Court also cannot be presently determined. No one can predict the judicial response to more aggressive Obama Administration efforts to reconstruct American politics. Moreover, a reconstructive Obama presidency bent on challenging judicial pretense will have to overcome what Stephen Skowronek refers to as the “[w]aning of [p]olitical [t]ime.”71 As governing institutions become increasingly independent and impervious to change, reconstructive Presidents have more difficulty achieving their goals. Skowronek observes “a pattern of greater institutional resilience in the face of . . . presidents’ order-shattering authority, of an ever thicker government that can parry and deflect more of their
Highly recommended.