Even some legal scholars sympathetic to Obama and the health-care law are saying that the president might have been better off keeping quiet.
“Presidents should generally refrain from commenting on pending cases during the process of judicial deliberation,” said Harvard Law professor Laurence Tribe, a close Obama ally. “Even if such comments won’t affect the justices a bit, they can contribute to an atmosphere of public cynicism that I know this president laments.”
White House officials sought Wednesday to play down Obama’s comments, with press secretary Jay Carney calling them an “unremarkable observation about 80 years of Supreme Court history.”
Carney said Obama was “referring to the fact that it would be unprecedented in the modern era of the Supreme Court, since the New Deal era, for the Supreme Court to overturn legislation” on a “matter of national economic importance” — not that it would be unprecedented for the court to rule that a law was unconstitutional. “That’s what the Supreme Court is there to do,” Carney said.
But the White House was forced to defend the assertion that overturning the health-care law would be unprecedented. According to the Congressional Research Service, the court through 2010 had ruled 165 times that laws passed by Congress were unconstitutional.
Obama himself agreed with some of those decisions, including 2008’s Boumediene v. Bush, in which the court ruled 5-4 that the Military Commissions Act’s suspension of the right of habeas corpus for Guantanamo Bay detainees was unconstitutional.
And Wednesday, the administration was in court in Boston explaining why it thinks the Defense of Marriage Act is unconstitutional, although it was passed by bipartisan majorities and signed by a Democratic president.
An intense public argument
The debate over Obama’s foray into the Supreme Court’s deliberations underscored the intense political heat surrounding the fate of the health-care law, which many scholars across the ideological spectrum once considered a sure bet to pass constitutional muster. After three days of oral arguments last week in which conservative justices appeared willing to consider striking down the heart of the law — the requirement that all Americans buy health insurance or pay a penalty — the notion of a major loss for Obama began to look far more realistic.