It is bad enough that liberal pundits have taken to bashing the Supreme Court. It’s embarrassing that liberal lawmakers are disparaging the court’s conservative justices as biased and/or unprofessional. (“Rep. James Clyburn (D-S.C.) said President Obama should campaign against the Supreme Court, painting it as a conservative, activist institution if it rules that the administration’s health-care law is unconstitutional.”) But it is inexcusable that the president should do so. That he is a lawyer himself makes it all the more appalling.
In the most heavy-handed fashion, President Obama began the judicial witch-hunt yesterday at a joint press conference with the Canadian prime minister and the Mexican president (my comments are in brackets):
With respect to health care, I’m actually — continue to be confident that the Supreme Court will uphold the law. And the reason is because, in accordance with precedent out there, it’s constitutional. That’s not just my opinion, by the way; that’s the opinion of legal experts across the ideological spectrum, including two very conservative appellate court justices that said this wasn’t even a close case. [How many of those expert thought so after the Supreme Court argument?] . . .
And I think it’s important, and I think the American people understand, and the I think the justices should understand, that in the absence of an individual mandate, you cannot have a mechanism to ensure that people with preexisting conditions can actually get health care. [Why should the justices care about a policy argument? Obama is confused as to their “mandate” — to interpret the Constitution] So there’s not only an economic element to this, and a legal element to this, but there’s a human element to this. And I hope that’s not forgotten in this political debate.
Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law [courts strike down unconstitutional laws all the time] that was passed by a strong majority of a democratically elected Congress [it barely got by the House and had no room to spare in a party-line vote in the Senate]. 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. [Obama and the rest of the liberal legal establishment has been saying the opposite for decades] Well, this is a good example. And I’m pretty confident that this Court will recognize that and not take that step.
Mitt Romney spokeswoman Andrea Saul told Right Turn: “What was ‘unprecedented’ was the partisan process President Obama used to shove this unconstitutional bill through despite the overwhelming objections from Americans across the country. Fortunately, our constitutional system empowers the Supreme Court to stop the president from trampling on the rights of the states and of the people. Even if the law is upheld, Gov. Romney will begin the process of repealing it on Day One in office.”
Romney sure has a point. Obama’s propensity to misrepresent the facts would be shocking enough, but this feeble attempt to influence the court and threaten political backlash if he doesn’t like the result is contrary to his responsibilities as president and to his oath of office to uphold the Constitution (even the Commerce Clause).
I differ with my colleague Ruth Marcus on the efficacy and constitutionality of Obamacare. But I share her reaction: “Obama’s assault on ‘an unelected group of people’ stopped me cold. Because, as the former constitutional law professor certainly understands, it is the essence of our governmental system to vest in the court the ultimate power to decide the meaning of the Constitution.” Marcus finds, “For the president to imply that the only explanation for a constitutional conclusion contrary to his own would be out-of-control conservative justices does the court a disservice.”
It is worse than that, really. If the president does not defend the rule of law and urge civil debate and acceptance of the court’s decisions, he is opening a Pandora’s box — contempt for the rule of law and further politicization of the court confirmation process. Imagine if President Eisenhower before Brown v. Board of Education had heckled, “Those unelected judges better not be dreaming up ways to undo the decisions of elected school boards around the country on how to run their schools.”
It would be reassuring if liberal law professors and law school deans, who are charged with teaching respect for the rule of law, took the president to task. It would be refreshing if the media grilled Obama on his rhetoric. But I won’t hold my breath.
Obama is nevertheless taking a gamble. The Supreme Court has generally ranked high among institutions in which Americans have confidence. Moreover, a Gallup poll found last year that Americans think the court is “about right” if not “too liberal.” (“A plurality of Americans, 42%, believe the Supreme Court’s ideology is ‘about right,’ but more believe it is ‘too liberal’ [31%] than ‘too conservative.’[20%] That has been the case in each of the last three years — the first three years of the Obama administration.”)
The president’s attack, then, is not only irresponsible but also politically risky. If his own side doesn’t call him out on his antics, Romney and other conservatives should — in defending the court they’d be right on the merits and right on the politics.