In Obama vs. Supreme Court, Politics Knows No Bounds

The hyper-partisanship that health care has spurred since it was signed into law two years ago has clearly spilled into the judiciary, a branch of government ideally considered the least partisan. Smith's homework assignment for Holder struck some observers as unusual, but signaled that the politics of the health care law aren't bound by traditional lines separating courts from party affiliations. Smith said Holder must type his answer by noon Thursday.

Obama's comments aimed at the Supreme Court's "unelected" justices set up a political plan B if the individual mandate is determined to be unconstitutional: he can run for re-election against the high court in addition to his Republican opponents.

Already the scene of Obama's staking out a position against the court is not easy to absorb, given that conservatives are usually the most vocal in criticizing courts. Newt Gingrich, for example, said late last year that he would send marshals to arrest "activist judges," and Rick Santorum said shortly afterward that he'd want to abolish the Ninth Circuit appeals court in San Francisco, which he called too liberal.

Obama has some precedent for challenging the court. In his State of the Union speech in 2010, he criticized the high court on its "Citizens United" ruling that unleashed super PACs, to which Justice Samuel Alito mouthed "not true."

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