07/06/2008 05:12 am ET Updated May 25, 2011

Obama Needs to Play Offense on the Supreme Court

The Obama campaign spent the last several weeks playing defense on the Supreme Court, siding with the Court's conservatives on gun rights and the availability of the death penalty for child rapists. While these positions raised eyebrows in some progressive circles, they were both legally defensible and politically smart.

But in his focus on playing take away, Obama failed to score points of his own as the Supreme Court's term ended, despite some great opportunities.

For example, the same day the child rape case was decided, the Court handed down an even more important ruling in Exxon Shipping Co. v. Baker, where the Court stripped $2 billion away from 32,000 fishermen and Native Alaskan's whose lives were devastated by the worst oil spill in US history, and gave this money back to Exxon.

At a time when gas prices are at $4.25 and Exxon is pocketing tens of billion in profits a year, this case presented a terrific opportunity to challenge McCain to defend this nakedly activist decision joined by Chief Justice John Roberts and Sam Alito - McCain's model judges -- and to assert that McCain is out of touch with the economic hardships hitting ordinary Americans. Unless I missed something, Obama was silent about this case.

Obama also missed an opportunity on Thursday, when the gun case was handed down, by failing to turn some of the conversation to another 5-4 case decided the same day in which the Court struck down an important part of the McCain-Feingold campaign finance law. This case was a minefield for McCain: his model judges ruled that an important portion of his most significant legislative accomplishment was unconstitutional.

Obama could have also used this case to blame conservatives on the Court for rulings that have limited the effectiveness of our nation's campaign finance system, thereby deflecting some of the criticism of his decision to reject public financing for the fall campaign. Again, all we heard was crickets chirping in Chicago.

Finally, Obama needs to do far more to highlight McCain's assertion that the Court's Guantanamo ruling in Boumediene was one of the "worst in the nation's history." As George Will effectively chronicled, this is a patently ridiculous statement, which Obama could use to tie McCain further to the administration and to define McCain's vision for the Supreme Court. Taking on McCain on this issue could also help quiet some of the angst in the netroots about Obama's moderating position on the FISA issue.

As these examples indicate, Barack Obama has the opportunity to do more than simply neutralize the Supreme Court as an election issue. By focusing on the right cases and the right issues, he can talk about the Supreme Court in ways that simultaneously speaks to Reagan Democrats feeling the economic pinch, and energizes the portions of his base that care deeply about the future of the Supreme Court.

The Obama campaign has promised to play offense this fall. On the Supreme Court, they need to step up to the plate.