75 years ago, in the 1930's, a radical right wing US Supreme Court tried to destroy President Franklin Delano Roosevelt and his legacy by ruling that key New Deal legislation was unconstitutional. Now, at least on the basis of the hostile questioning by the Court's right wing justices during oral arguments on President Obama's signature legislative achievement, the health care reform law, an equally reactionary majority may be about to do the same to him.
Today, Wednesday, April 25, the Supreme Court, as the entire nation knows, will hear oral argument on what is arguably President Obama's other most significant achievement so far. This is using the federal courts to protect America's immigration system from assaults by state legislatures, not only in Arizona, but in the deep South, which are intent on bringing back the old system of racial segregation and oppression, but with Hispanic immigrants as the targets, instead of African-American US citizens.
As this is being written before the beginning of the oral argument, no one can predict what will actually happen. But it would not be surprising if questioning by the radical right bloc on the Supreme Court is just as hostile to the idea of the federal government's trying to "interfere with state's rights" in immigration matters as it was in the case of the federal mandate to purchase health insurance.
In both cases, the real target is President Obama. In the health care case, the object was to make him look too weak to be able to carry out his health care reform plan. In the case involving Arizona's immigration law, the object would be to make the president look too weak to be able to preserve federal control over immigration in general and to protect the basic rights of minority immigrants, regardless of their legal status or lack of it, in particular.
In both cases, arguments over the meaning of the law and the Constitution are likely to turn out to have been nothing more than a side show. The real event will in all probability be to destroy the president politically by making him look incapable of carrying out any initiative which would stand up in court.
Roosevelt responded to the Supreme Court's attempts to destroy him and his legacy by trying unsuccessfully to pack the Court. Of course, this was totally illegal and unacceptable, but it did at least make clear to the public that the Supreme Court was a very major political issue. Today, all of Roosevelt's main New Deal initiatives are recognized as legal and Constitutional.
If today's equally far right wing Supreme Court majority continues with its apparent goal of destroying President Obama politically, no matter what law and precedent may provide, it will also make itself into a major political issue, even more than it has already done with Bush vs. Gore and Citizens United.
In that case, President Obama would have no choice but to respond in kind - not, of course, by trying to pack the Court, but by speaking out , as he began to do after the oral argument in the health care reform case, but then shrank back from when some of his right wing opponents said "boo". Indeed, President Obama has far too often stepped back from speaking out or doing what justice and humanity require. His record as America's deporter in chief shows that, if nothing else.
More than that, the fact that the president is turning America into a Deportation Nation may even be used against him during oral argument on the Arizona case: why is President Obama fighting so hard to stop the states from persecuting minority immigrants while he is locking up and deporting record numbers himself? Aside from the far right wing Supreme Court majority, if it eventually upholds the Arizona immigration law, the president may have to face an even more implacable opponent of fairness and justice toward immigrants - himself.
Roger Algases is a graduate of Harvard College and Harvard Law School. He has been practicing business immigration law in New York City for more than 20 years.