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.
Some liberal groups have said that a loss could help the president politically by galvanizing his base in time for the November election around shared disdain for an activist conservative court.
Obama has attacked the court once before, criticizing in his 2010 State of the Union address its Citizens United decision, which loosened campaign spending restrictions.
In the case of the health-care law, experts agreed that it was unusual, though not unprecedented, for a president to inject himself into the matter before the justices had announced their ruling.
A White House official, speaking on the condition of anonymity to discuss internal thinking, said Obama’s remarks reflected the reality that the law was the subject of a major public and political debate. “It would have been bizarre in the extreme for the president to say, ‘That’s pending litigation, and I’m not going to comment,’ ” the official said. “It’s just not realistic.”
Obama commented on the health-care deliberations on two occasions this week: during a Rose Garden news conference Monday and in response to a question Tuesday at a luncheon with newspaper editors.
On Monday, he needled conservative commentators, saying that for years, “what we’ve heard [from them] 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,” he added, “this is a good example.”
Then on Tuesday, asked why he seemed to be dismissing the court’s long-held role of reviewing laws passed by Congress, Obama sought to clarify, if not soften, his earlier remarks, though he did not back off his argument. He also tried to emphasize a point that some close to the White House thought was being overlooked by the court’s conservative wing — that it was up to the challengers of the law to prove its unconstitutionality.
“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,” Obama said. “And so the burden is on those who would overturn a law like this. Now, as I said, I expect the Supreme Court actually to recognize that and to abide by well-established precedence out there.”
Defending the president
Some scholars argued that the president was well within his rights to speak out, particularly given the intense public attention paid to the health-care debate.
“To the extent some may have misconstrued the president’s initial remarks, he made expressly clear in his second statement what he obviously intended in his first — that of course he respects the independence of the judiciary and the role of judicial review,” said Walter Dellinger, who was solicitor general under President Bill Clinton. “The justices’ life tenure secures their independence. There is no reason that issues before the court should be fenced off from public debate.”
Brian Fitzpatrick, a former clerk to Justice Antonin Scalia and now a law professor at Vanderbilt University, noted that Republican members of Congress and the GOP presidential candidates regularly denounce the liberal U.S. Court of Appeals for the 9th Circuit, and he said he thought Obama was being similarly “cute” with his comments Monday.
Some wondered if the president has a strategy to convince the public that the court, with its conservative majority, is thwarting his agenda. That could mobilize liberal voters who see future judicial appointments as a key concern. Two politically charged issues important to pieces of Obama’s base are likely to come before the justices soon: the administration’s attempt to block Arizona’s tough immigration law and its stance opposing the Defense of Marriage Act.
Still, such a strategy could backfire among the justices, resulting in policy setbacks that outweigh any political gain. “The president may end up losing more than he gains” by calling out the court, Fitzpatrick said.
Should Obama decide to challenge the court more directly, some experts say he faces political risk. Not only is the health-care law unpopular — polls show that many Americans see it as unconstitutional — but the court itself can be a losing target.
James Gibson, a political science professor at Washington University in St. Louis, has found in an annual survey that Americans hold a consistently high regard for the legitimacy of the Supreme Court.
“Obama’s got to be very careful about attacking the institution,” Gibson said. “We have good data to suggest the Supreme Court is deeply respected, and that’s even after Bush v. Gore, even among Democrats and even among African Americans.”
Staff writers David Nakamura and Jerry Markon contributed to this report.