It is unlikely to end up in Bartlett’s “Familiar Quotations” or carved on the wall of his Presidential library, but “sue me” turns out to be one of the smartest things Barack Obama has said. The President made the offhand comment on July 1st, while discussing his determination to act unilaterally if Congress proved unwilling to coöperate, and it baited Speaker John Boehner into making good on his threat to prepare a lawsuit against Obama for his embrace of executive power.

The suit has become a joke even before it’s been filed. There is a strenuous effort, in certain conservative circles, to take it seriously. When Boehner announced his intention to sue, in June, the Wall Street Journal awarded him “all due credit” for resisting Obama’s “imperial powers,” and on Wednesday Republicans on the House Rules Committee kept a straight face while debating it. But most observers—even on the right—see the lawsuit, as in the words of the blogger Erick Erickson, “a political stunt” aimed at rallying Republican voters who, all things being equal, would have preferred to see the President impeached, or traded to Germany for Bastian Schweinsteiger and a player to be named later.

The idea of throwing red meat wrapped in a petitioner’s brief, of all things, to the midterm electorate should cause Republican strategists to flip their lids. It’s hard to overstate the role of lawyer baiting, litigation hating, and activist-judge bashing in the electoral success of the G.O.P. since the late nineteen-sixties, when Richard Nixon fixed on this formula to unite and expand the Republican coalition of states-rights traditionalists, social-issue activists, small-government conservatives, big businesses, small businesses, and other groups who wanted courts to get out of enforcing regulations they didn’t like and rights they didn’t support. That loathing, by now, is bred in the bone. In the conservative lexicon, there are few epithets worse than “liberal trial lawyer”; Republican ads are presently flinging it at Democratic gubernatorial candidates in Georgia and South Carolina.

But, as Boehner’s move reveals, the right is having it both ways when it comes to the courts. Attacks on excessive litigation notwithstanding, conservatives are doing exactly what they say the left has long done: rushing to litigate political questions, elevating all manner of disputes to the level of high constitutional principle, and asking judges to settle (or revisit) policy arguments that ought to be resolved by legislators or voters. If the Affordable Care Act can’t be repealed, despite dozens of attempts, it can be undercut by judges, as in the Supreme Court ruling in the Hobby Lobby case. If the National Labor Relations Board can’t be shut down, the Presidential power to make recess appointments—which has kept the agency running—can be curbed, possibly for good, as last month’s Noel Canning decision portends. And if Obama can’t be impeached, well, he can be sued.

That Republicans have learned to stop worrying and love the lawsuit—maybe not Boehner’s in particular, but as a general proposition—is a measure of their success in remaking the judiciary and reshaping the legal environment over the past forty years. Republicans still rail against the liberal legal élite, but there’s a hollowness to their claim that activist judges are regimenting our national life in the name of social progress and a living Constitution. It is, instead, the conservative legal establishment in the catbird seat, enjoying, more than at any time since the nineteen-twenties, a defining influence on the law. After five years of an Obama Presidency, the federal bench may now be evenly divided between Democratic and Republican appointees, but the latter are still on the offensive, and still gaining ground.

As the Harvard Law School Professor Laurence Tribe and his former student Joshua Matz write in their new book, the Roberts Court has clamped down hard on what conservatives see as frivolous litigation, “narrowing and shutting down many of the doctrines and procedural devices”—class-action lawsuits or civil-rights claims, for example—“through which plaintiffs invoke the courts to vindicate their rights.” “By tinkering with procedure,” Tribe and Matz explain, “the Court can discourage people from filing suits … and stack the deck in favor of defendants,” particularly businesses. At the same time, conservative justices have opened the courthouse doors to the kind of litigation they like: challenges to long-established policies and precedents regarding race, religion, campaign spending, and the rest of the right’s policy agenda. Victories in landmark cases like Citizens United (which brought you the Super PAC) and Heller (which gave you a right to armed self-defense) and Shelby County (which assured you that minority voting rights are no longer at risk in the South) have encouraged right-leaning litigators to swing for the fences. Not every at-bat yields a home run, of course, but the percentage is high. Boehner is pretty certain to strike out here, but you can’t blame the man for liking his chances.

Jeff Shesol, a former speechwriter for President Clinton, is the author of “Supreme Power: Franklin Roosevelt vs. the Supreme Court” and is a partner at West Wing Writers. Follow him on Twitter at @JeffShesol.

Above: A House Rules Committee hearing about John Boehner’s lawsuit. Photograph by Win McNamee/Getty Images.