During campaign, Obama appears ready to paint Supreme Court as extreme
WASHINGTON — President Barack Obama is laying groundwork to make the majority-conservative Supreme Court a campaign issue this fall, taking a political page from Republicans who have long railed against liberal judges who don’t vote their way.
The emerging Democratic strategy to paint the court as extreme was little noted in this week’s hubbub over Obama’s assertion that overturning his health care law would be “unprecedented.”
His statement Monday wasn’t completely accurate, and the White House backtracked. But Obama was making a political case, not a legal one, and he appears ready to keep making it if the high court’s five-member majority strikes down or cuts the heart out of his signature policy initiative.
The court also is likely to consider several other issues before the November election that could stir Obama’s core Democratic supporters and draw crucial independent voters as well. Among those are immigration and voting rights.
“We haven’t seen the end of this,” said longtime Supreme Court practitioner Tom Goldstein, who teaches at Stanford and Harvard universities. “The administration seems to be positioning itself to be able to run against the Supreme Court if it needs to or wants to.”
While Obama has predicted victory in the health care case now before the court, his administration could blame overreach by Republican-appointed justices if the law is rejected, said Goldstein.
This can be dangerous ground, as Obama discovered. Since Franklin Roosevelt, few presidents have directly assailed the Supreme Court. In Obama’s case, he issued an indirect challenge, but the former constitutional law professor tripped over the details.
Obama told a news conference on Monday that he was “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.”
The Supreme Court does sometimes overturn laws passed by Congress. Obama later clarified that he was referring to a narrow class of constitutional law, but even then Republicans and some court scholars took issue. What’s not in question is that the law wasn’t approved by a strong majority — the vote was 219-212 in the House.
A Republican-appointed federal judge took umbrage at the suggestion that federal courts might be powerless to overturn such laws, and ordered the Justice Department to provide written assurance. He insisted that the response be at least three pages, single-spaced.
Attorney General Eric Holder took on that task himself, telling the judge Thursday that “the longstanding, historical position of the United States regarding judicial review of the constitutionality of federal legislation has not changed.”
He also took the opportunity to cite Supreme Court case law supporting the premise that laws passed by Congress are “presumptively constitutional.”
The Supreme Court heard three days of argument on the 2010 health care overhaul last week, and the court’s conservative majority appeared deeply skeptical of the key provision, a requirement for individual health insurance. Justice Antonin Scalia, for one, appeared strongly in favor of striking down the entire law. A decision is expected by July.
Also Thursday, Senate Republican Leader Mitch McConnell had his say on presidents and the Supreme Court.
“The president did something that as far as I know is completely unprecedented. He not only tried to publicly pressure the court into deciding a pending case in the way he wants it decided; he also questioned its very authority under the Constitution,” McConnell said.
The constitutional issue aside, Obama made it clear that the thrust of his argument is political. He ticked off popular elements of the law that already are in force, and said the consequences of losing those protections would be grave for young people and the elderly, in particular.