In Obama vs. Supreme Court, Politics Knows No Bounds

PHOTO: President Obama greets Supreme Court JusticesBrooks Kraft/Corbis
President Barack Obama greets members of the Supreme Court before addressing a joint session of Congress in Washington, in this Feb 24, 2009 photo.

President Obama has plenty of enemies: the Republican candidates for president, the small army of pro-business lobbyists in Washington, the Tea Party hordes, to name but a few.

Now Obama might have added the Supreme Court to that list, and with it, a host of conservative judges across the country who appear to be less afraid than ever to show their true political colors.

One federal judge has gone so far as to request that Obama explain to him in three single-spaced pages why he said at a news conference that the Supreme Court's overturning his signature health care law would be "unprecedented," to which Attorney General Eric Holder says he plans to respond.

"What the president said a couple days ago was appropriate," Holder told reporters in Chicago today when he was asked to respond to the request from Fifth U.S. Circuit Court of Appeals Judge Jerry Smith, a Ronald Reagan appointee in New Orleans. "The courts are also fairly deferential when it comes to overturning statutes that the duly elected representatives of the people in Congress pass."

Holder, who also cited the landmark Marbury v. Madison case that established the court's right to review the constitutionality of laws passed by Congress, repeated that the administration believes the Supreme Court will uphold the health care law as constitutional, an issue that reignited this week when Obama told the media that declaring the measure otherwise "would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress."

"And 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," he said.

The health care law wasn't passed by a "strong majority," but rather by a small majority through a technical "reconciliation" measure in the Senate to avoid a filibuster, and a narrow vote in the House that didn't include a single Republican supporting it. House Speaker John Boehner's office has made a point of reminding the media of the vote -- 219-212 in the House, including 34 Democrats who voted against it -- since Obama made his comment Monday.

Obama was asked Tuesday to clarify his comment, and he argued that "there is a human element" to the health law that is at stake if it is overturned.

"I doubt very much if the president sought the attorney general's advice on the statements he made yesterday because they are so removed from the mainstream of legal thinking," said Dick Thornburgh, a former attorney general. "I would suggest that it might be unwise to pick a fight with the court on this particular issue, because it is so much a part of the rule of law in our country."

The White House has argued that Obama wasn't trying to intimidate the court by arguing that it shouldn't strike down the health care law. Press secretary Jay Carney today said that Obama simply made an "unremarkable observation" that in 80 years, the Supreme Court has "deferred to Congress when it comes to Congress's authority to pass legislation to regulate matters of national economic importance, such as health care."

"That is the reverse of intimidation," Carney told reporters.

Legal analysts have noted that the Supreme Court is not tasked with considering the merits of "Obamacare," only its constitutionality, specifically the lawfulness of the so-called mandate to buy health insurance.

"The idea of a judge, in a completely irrelevant way, ordering the attorney general to write an essay like an errant school boy has to write 'I will not be late to class' a thousand times on the blackboard is unbelievable," said Charles Fried, a former solicitor general who teaches law at Harvard. "I mean, it just shows how terribly partisan and completely off base our political discourse has become.

"The only way to describe it is weird," Fried added. "It's one of these things where you want to say, 'Ah, Judge Smith, take a deep breath and count to 10.'"

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."