On Monday President Obama unleashed a storm of criticism over his remarks criticizing the Supreme Court. Minority Leader Sen. Mitch McConnell joined other conservatives (and some liberals) in blasting the president :
Regardless of the Supreme Court’s decision on Obamacare’s unprecedented mandate on the American people, elected leaders have an obligation to protect our system of checks and balances. The President, more than anyone else, has an obligation to uphold the legitimacy of our judicial system. But his remarks on the Court reflect not only an attempt to influence the outcome, but a preview of Democrat attacks to come if they don’t get their way.
“Only someone who would browbeat the Court during the State of the Union, and whose administration stifled speech during the health care debate, would try to intimidate the Court while it’s deliberating one of the most consequential cases of our time. 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.”
So on Tuesday Obama retreated, sort of, but in a weaselly and tellingly ignorant manner. Stammering and haltingly in response to a reporter’s question, he asserted he hadn’t really said what he said. (He seems to be taking excuse-mongering lessons from Rick Santorum.) He insisted: “Well, first of all, let me be very specific. Um, [pause] we have not seen a court overturn [pause] a [pause] law that was passed [pause] by Congress on [pause] a [pause] economic issue, like health care, that I think most people would clearly consider commerce. A law like that has not been overturned [pause] at least since Lochner, right? So we’re going back to the ‘30s, pre-New Deal.”
Is this a law school exam — to find the most errors? Lochner wasn’t a New Deal case; the famous Schechter chicken inspector case was. But it wasn’t a commerce clause case; it was a substantive due process case. The Supreme Court in fact has invalidated many statutes, state and federal, economic and otherwise — even a few on commerce clause grounds. By the way, “economic” laws aren’t a special category under the Constitution. Next, even a number of liberal justices conceded the case is about health-care insurance, not health care (as Obama asserted). And about 72 percent of Americans think it is unconstitutional. Other than all that, he got it right. Is Obama really so shaky on the facts and the law, or does he think he can just slide by without anyone noticing the serial misstatements?
It would be one thing if the president had originally stated that he thinks the law is constitutional, but the justices will have the final say. Because he did far more than this — lecturing the court that it would be accused of judicial activism if it ruled the “wrong” way, for one — he was forced to backtrack. Tuesday, which he finally managed to get out in a speech at an Associated Press luncheon: “[T]he 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.” He didn’t say that on Monday, for if he had he wouldn’t have had to clean up his mess on Tuesday.
The Post editorial board summed up what had transpired: “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.”
His off-the-cuff-remarks to the press were, alas, not careful at all, but the comments taken together were at least a recognition that he had been out of line. Before Obama’s retreat, my colleague Greg Sargent tried gamely to defend Obama’s Monday attack. But it doesn’t take a lawyer, or the White House political team (which no doubt got queasy when reading the blowback), to recognize the president spoke inappropriately and irresponsibly on Monday, attacking motives of the justices who may rule against him. That is why Obama cried uncle, albeit in an inaccurate and self-serving way.