Washington – Barack Obama got off to a bad start with the Supreme Court the very moment he was sworn in as president, and it’s not getting any better.
On Thursday, seizing on Obama’s comments Tuesday about the high court and health care, Senate Republican leader Mitch McConnell of Kentucky declared that the president “crossed a dangerous line this week” when he complained about unelected judges overturning laws.
“Anyone who cares about liberty needs to call him out on it,” McConnell said. “The independence of the court must be defended. … So respectfully, I would suggest the president back off.”
McConnell was striking where he sees White House vulnerability: Three years after a mutually muffed Inauguration Day oath foreshadowed future tensions, Obama is getting renewed grief for challenging the court, whose conservative majority appears poised to strike down at least part of his signature health-care law.
Conflict, though, can be inevitable when law meets politics; the real question is how ugly it gets and who gets harmed in the end.
“The court is often out of step with the other branches,” noted Thomas Keck, a professor of constitutional law and politics at Syracuse University’s Maxwell School of Citizenship and Public Affairs.
Protected by their lifetime appointments, federal judges can easily vex politicians, who curry public favor for a living. Congressmen seek a constitutional amendment to ban flag-burning. The court says this violates free-speech rights. A city bans handguns. The court says this violates the Second Amendment. A law gets struck down, and lawmakers lash out.
“Judges in this country are out of control,” Rep. Steve King, R-Iowa, declared after a federal judge in 2010 blocked the military’s “don’t ask, don’t tell” policy. “The American people should respond by pursuing avenues which would result in the removal of lawless judges from the state and federal bench.”
Presidents often get frustrated; most notably, Franklin Roosevelt, who saw a largely Republican Supreme Court strike down many of his New Deal programs that addressed the Great Depression.
“We thought we were solving it,” Roosevelt fumed in a 1935 news conference after the court gutted one of his programs, “and now it has been thrown right straight in our faces.”
Nor is vexation a one-way street. The justices, too, can get testy about the other two branches of government. Justice Antonin Scalia, for one, showed his scorn for standard legislative practice last week when dismissing some Nebraska deal-making that contributed to the 2,700-page health care law.
Imagine “we struck down nothing in this legislation but the — what’s it called, the Cornhusker kickback — OK, we find that to violate the constitutional proscription of venality, OK?” Scalia said, prompting laughter.
Obama’s stiff-arm to the court differed in several important respects from Roosevelt’s. It came before the court has ruled on the health care law, suggesting that he was trying to influence the justices. However, unlike Roosevelt — who subsequently tried unsuccessfully to get Congress to let him pack the court with additional justices — Obama hasn’t proposed explicit retaliation.
Not that he was subtle. Summoning terms often invoked by conservatives, Obama characterized the court Monday as “an unelected group of people” who shouldn’t overturn a “duly constituted and passed law.”
Inaccurately, the former University of Chicago law lecturer also asserted that it would be an “unprecedented, extraordinary step” for the court to “overturn a law that was passed by a strong majority” of Congress.”
In fact, popular laws regularly fail the constitutional test. After Obama became president, for instance, the court struck down an animal-cruelty video law that had passed the House of Representatives by 372-42. All told, the Supreme Court has struck down some 165 laws through 2010, according to the Congressional Research Service.
Facing amped-up Republican criticism, Obama dialed back his rhetoric. His press secretary, Jay Carney has likewise done further damage control.
But it was the president’s initial words that resonated, as a combination of shot-across-the-bow and a trial run for future debate on the Patient Protection and Affordable Care Act. By the end of June, the court is expected to decide whether the law’s requirement that most U.S. residents must buy health insurance or pay a penalty exceeds Congress’ power under the Constitution to regulate interstate commerce.
Obama’s comments, McConnell said Thursday, “reflect not only an attempt to influence the outcome, but a preview of Democrat attacks to come if they don’t get their way.” The latter was undeniably true, even if McConnell had his own partisan motives for saying so.
More surprisingly, a federal appellate judge in Texas cited Obama’s words Tuesday in ordering a Justice Department attorney to write a three-page, single-spaced letter explaining the ability of courts to strike down laws. On Thursday, the Justice Department affirmed that, yes, courts do hold the law-dunking authority first identified in a landmark 1803 decision, Marbury v. Madison.
“The president believes that the Supreme Court has the final word on matters of judicial review on the constitutionality of legislation,” Carney said, as he faced repeated questioning on the point Thursday. “He would, having been a professor of law.”
In any institutional fight, the Supreme Court starts off with some public advantage. Forty-six percent of U.S. residents whom Gallup surveyed last October approved of the Supreme Court’s performance, while only 13 percent approved of Congress.
The justices’ sense of decorum prohibits them from defending themselves directly from rhetorical political assault, however, and that can diminish their reputation. Even before this latest tussle, public support for the court had fallen from the 61 percent approval rating of a decade ago.
Obama previously had shown his readiness to blast the court, as when he used his 2010 State of the Union speech to denounce a ruling that permits unlimited union and corporate campaign spending. Congressional Democrats applauded, while Justice Samuel Alito appeared to mouth the words “not true.” The partisan exchange prompted Chief Justice John Roberts Jr. to consider avoiding future State of the Union speeches.
Roberts, who scrupulously tends to the court’s reputation, had had his own awkward encounter with Obama when both interrupted each other during the Jan. 20, 2009, inauguration. The two Harvard Law School graduates had to repeat the exercise later.
“Are you ready to take the oath?” Roberts asked Obama during the Jan. 21 do-over.
“I am,” Obama said, “and we’re going to do it very slowly.”