On Monday President Obama fired a warning shot across the bow of the US Supreme Court, which is still deliberating on health care reform. The nine justices probably cast their votes on Friday, but they can still change their votes.
In response to a reporter’s question, the president said:
I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.
And I’d just remind conservative commentators that for years what we’ve heard is the biggest problem on the bench was judicial activism or a lack of judicial restraint, that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example. And I’m pretty confident that this court will recognize that and not take that step.
On the surface, this was just a “turnabout is fair play” move; Republican politicians have attacked “activist” judges for a generation.
Presidents have occasionally criticized Supreme Court decisions: FDR famously did it in the 1930s, when the Court overturned several pieces of New Deal legislation. And President Reagan took the Court to task for its decisions on school prayer and Roe v. Wade.
What’s different this time—and may be unprecedented—is the president’s calling out the court before it issued its decision. That clearly reflects concern at the White House at how poorly last week’s oral arguments went.
Conservative justices grilled Solicitor General Donald Verrilli Jr. mercilessly on the individual mandate to buy health insurance, and he was unable to state any limiting principle to Congress’s authority to regulate interstate commerce.
And supporters of the law must have felt a chill when the alleged swing vote, Justice Anthony Kennedy, said:
And here the government is saying that the federal government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases and that changes the relationship of the federal government to the individual in the very fundamental way.
The president clearly sees which way the wind is blowing—after all, he taught constitutional law. He’s preparing for the Supreme Court to strike down the individual mandate or maybe even the whole law.
So, he’s putting down a marker for his presidential campaign to re-visit later, an issue that might galvanize liberals and appeal to fair-minded independents.
The court decision is fair game, and so is the pitch, “elect me and I’ll appoint judges who share our values.” Every single Republican presidential candidate I saw on the campaign trail said that.
But the president’s criticism of the justices before they’ve written their opinion is much more problematical; it smacks of lobbying, even warning, justices while they’re still deliberating, which is a no-no.
The administration had its chance to make its case. Now the president should wait for the outcome and then speak his peace.