PRESIDENT OBAMA’S comments Monday about the Supreme Court were jarring. If the court were to strike down the health-care law, Mr. Obama said, it would be a blatant example of judicial activism. That “an unelected group of people would somehow overturn a duly constituted and passed law,” the president said, would be “an unprecedented, extraordinary step.” Well, not exactly, and the comments strayed perilously close to a preemptive strike on the court’s legitimacy if it were to declare the individual mandate unconstitutional.
Which is why Mr. Obama was wise to revise and extend his remarks Tuesday in comments to newspaper editors. Mr. Obama was more careful in the details and tone of his critique.
He made clear that he was not questioning the court’s power to strike down a statute, just that exercising it in this situation, involving Congress’s ability to regulate commerce, would be remarkable: “The point I was making is that the Supreme Court is the final say on our Constitution and our laws, and all of us have to respect it, but it’s precisely because of that extraordinary power that the Court has traditionally exercised significant restraint and deference to our duly elected legislature, our Congress. And so the burden is on those who would overturn a law like this.”
That is a far more nuanced and appropriately phrased argument than the president’s earlier remarks. As we said last week, after the oral arguments had concluded, it is troubling that some liberal supporters of the law are preemptively trying to delegitimize a potential defeat, as if no honest justice could possibly disagree with the mandate’s constitutionality. The president’s initial remarks added unnecessary fuel to this contention. Given the power of the bully pulpit, presidents are wise to be, well, more judicious in commenting about the high court.
As could have been predicted, Mr. Obama’s less-than-careful comments were matched by less-than-careful criticism. Senate Minority Leader Mitch McConnell (R-Ky.) accused the president of trying to bully the court: “This president’s attempt to intimidate the Supreme Court falls well beyond distasteful politics; it demonstrates a fundamental lack of respect for our system of checks and balances.”
This bit of presidential mind-reading — how, exactly, does Mr. McConnell know that the president is trying to cow the court? — overstates the problem. The best thing, now that the case has been submitted, would be for both sides to settle down and let the justices do their serious work.