Election Watch: A president on the court?

By Luke Freedman

The current lull in the campaign gives one time to step back from the day to day details of the primary and think long term. So, if you’ll indulge me, I’d like to throw out a possibility still many years down the road: Barack Obama as a member of the Supreme Court. Before you dismiss the idea, give me a chance to explain.

President Barack Obama and Supreme Court Justice Elena Kagan

President Barack Obama with Supreme Court Justice Elena Kagan

Obama clearly has an impressive legal background. He was president of the Harvard Law Review, and Laurence Tribe, the extremely influential professor of constitutional law, referred to Obama as the “best student I’ve ever had.” After graduating from Harvard Law School, Obama taught constitutional law at the University of Chicago for twelve years.

It’s true that Obama hasn’t practised law in a long time — his law license has actually become inactive — but in some respects this could be an asset. There is a value in having justices with different life experiences who have seen firsthand how the law impacts the day to day lives of citizens. It’s become standard practice for Supreme Court justices to have extensive experience as judges, but things were not always this way. Thurgood Marshall gained notoriety as a civil rights attorney; William Rehnquist was working in the Justice Department at the time of his nomination. The court has become more diverse in terms of gender and ethnicity, but more homogenous as measured by the previous occupations of its members.

Obviously a justice should have an excellent understanding of legal theory, but it also helps to understand the perspective of the legislators that pass laws. Take the controversial 2010 Supreme Court decision Citizens United v FEC, which declared “the government may not keep corporations or unions from spending money to support or denounce individual candidates in elections.” Imagine the sort of impassioned dissent that Justice Obama could have written if he were on the court at the time:

Unlike the other justices, I have served in elected office. I’ve seen firsthand the role of money in politics; how large donations influence the workings of Congress. Today, the Court opens the door for unlimited corporate and union spending in elections without any real understanding of how this will impact the integrity of the electoral system and the democratic process.

Over the last twenty five years, the Supreme Court has moved increasingly to the right. In response, liberals have been looking for a justice who can offer a coherent and emphatic alternate vision of constitutional law. Given his name recognition, Obama has the potential to be this sort of figure. Whenever he read an opinion or dissent from the bench, it would be sure to garner media attention.

Of course there are a lot of obstacles to this ever becoming a reality. It’s rare nowadays for a justice older than sixty to get appointed to the court. Obama is fifty now, so he’d probably need a Democratic president to be elected in 2016, or at the latest 2020, in order to receive the presidential nomination necessary for appointment. Further, Obama might have no interest whatsoever in being on the court. This is a very real possibility; however, he obviously has a strong interest in constitutional law, and has been described as professorial and aloof, two character traits that seems more fitting of a Supreme Court justice than an elected official. Obama ending up on the Supreme Court is a long shot, but it’s an option that Democrats should at least consider in the future.

23 February 2012