To the fainting couch! Obama attacked the Supreme Court and threatened it with a backlash, should it strike down his tyrannical scheme to impose a government takeover of health care on the nation!
That’s what many conservative writers and even some centrist ones are arguing. They are saying that Obama’s words about the Court yesterday were “unsettling” and a “witch-hunt,” and they’re likening them to F.D.R.’s efforts to pack the Court in retaliation for decisions striking down New Deal initiatives.
Please. If what Obama said yesterday is an “attack,” it’s pretty timid stuff indeed.
Obama made several key points in his comments yesterday that critics are citing. First, he said he was “confident” that the Court will uphold the law, that it’s in accordance with legal precedent, and that it’s Constitutional. He noted that legal experts of all stripes, including conservatives, agree. That’s not an attack on the court.
Second, Obama said the Justices “should understand” that getting rid of the individual mandate will make it impossible to ensure that those with preexisting conditions get health care. That’s pointed language, but it’s not an attack on the court, either. Agree or disagree, that’s an argument in defense of the law, on the grounds that it helps people, and on the grounds that getting rid of the mandate will have consequences.
The third point Obama made that critics are singling out is this:
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.
Is Obama’s reference to “unelected” justices an “attack”? If so, it’s pretty tame stuff indeed. Obama is characterizing the conservative line that that judicial activism by unelected judges is a bad thing, and arguing that overturning Obamacare would be an example of what conservatives themselves decry. Obama is mainly making an argument about legal precedent here — he’s pointing out that historically, the court has deferred to Congress as a democratically-elected institution in deciding whether to overturn laws, and saying he hopes the Court does the same again.
I’m not defending Obama’s claim that overturning the law would be “unprecedented” — it wouldn’t — but as “attacks” go, this is pretty weak sauce. And it’s a bit surprising to hear so much whining about it, given the attacks on “activist” judges conservatives have waged for years.
If you really want to hear an “attack” on the court, go check out F.D.R.’s 1937 address, in which he accused the Court of wanting to banish the nation to a “No-Man’s Land of final futility.” Or check out his Fireside Chat about his court-packing scheme, in which he warned that it was time to “save the Constitution from the Court” and accused the courts of operating in “direct contradiction of the high purposes of the framers of the Constitution.”
As I noted yesterday, I don’t think Obama will ultimately wage a full-blown campaign against the court as part of his reelection strategy even if the law is struck down. Maybe he will in the end. But what Obama said yesterday was not any kind of sign of this. It was not particularly aggressive or even all that remarkable.
UPDATE: Jeff Shesol, whose book, “Supreme Power,” chronicles FDR’s battle with the Supreme Court over the New Deal, emails me: “By historical standards, it was more of a nudge than an attack.”