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 healthcare 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 up Obama's core Democratic supporters and draw crucial independent voters as well. Among those are immigration, voting rights and a revisit of a campaign finance ruling that Obama has already criticized as an outrage.
"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 healthcare case now before the court, his administration could blame overreach by Republican-appointed justices if the law is rejected, said Goldstein, who wrote a brief supporting the law's constitutionality.
This can be dangerous ground, as Obama discovered. Since Franklin Delano 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 a slim 219 to 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 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 a rare three days of arguments on the 2010 healthcare 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 are already in force, and said the consequences of losing those protections would be grave for young people and the elderly, in particular.
"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," Obama said. "Well, this is a good example. And I'm pretty confident that this court will recognize that and not take that step."
Obama narrowed and clarified his original statement on Tuesday, under questioning at The Associated Press annual meeting. His spokesman spent the next two days explaining and defending both statements on both legal and political grounds.
As a former law professor, "the president understands judicial precedent. He has a little experience with it, and the importance of judicial review," White House press secretary Jay Carney said Thursday.
University of Texas Law School professor and Supreme Court scholar Lucas Powe said Obama's original statement suggests he probably knows the law is in trouble and is seeking political high ground.
"My instinct is that he was laying predicate for a campaign statement," Powe said. "People said he was threatening the court. You can't threaten the Supreme Court."
It wasn't the first time Obama criticized the court. He blasted the court's then-fresh campaign finance ruling in his 2010 State of the Union address.
"The Supreme Court reversed a century of law to open the floodgates for special interests, including foreign corporations, to spend without limit in our elections," Obama said then.
That earned an on-the-spot rebuttal from conservative Justice Samuel Alito. Alito, sitting in the front row, was seen to mouth, "Not true."
Democrats and many constitutional scholars were also appalled by the court's actions in 2000, when it took on the disputed presidential election and effectively called the race for Republican George W. Bush. Justice John Paul Stevens, a lifelong Republican appointed by President Gerald Ford, warned in a bitter dissent that the court risked undermining its own authority by appearing nakedly political.
The current back and forth turns a standard Republican campaign rallying cry on its head. Over the past three decades, Republicans have increasingly criticized judges as liberal and unaccountable, charging "judicial activism" has infected the court system.
The Supreme Court was a regular target, even during the tenure of conservative Chief Justice William H. Rehnquist.
The court has had a conservative majority for more than a decade. But while the court was far from a rubber stamp for Bush, it took the election of Democrat Obama to draw a sharp contrast between the court and the executive.
Both Democrats and Republicans are being disingenuous by using the court as a political instrument, said Orin Kerr, a prominent conservative Supreme Court expert.
"Judicial activism is a two-way street, and when the politics switch most people reverse arguments," said Kerr, a professor at George Mason University School of Law. "Liberals are sounding like conservatives and conservatives are sounding like liberals."
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