Obama crit­i­cizes Supreme Court be­cause he can

Pres­i­dent has voiced strong opin­ions on cases cen­tral to his legacy

The Washington Post Sunday - - POLITICS & THE NATION - BY GREG JAFFE greg.jaffe@wash­post.com

Pres­i­dent Obama seemed to rel­ish the chance to take yet another swipe at the Supreme Court jus­tices who were de­lib­er­at­ing a case that could de­ter­mine the fate of his land­mark health-care law.

“This should be ane asy case,” he said ear­lier this month re­gard­ing the latest le­gal showd own over the Af­ford­able Care Act. “Frankly, it prob­a­bly shouldn’t even have been taken up.”

This time the pres­i­dent was tak­ing ques­tions from re­porters at a re­cent sum­mit of world lead­ers in Ger­many. The case be­fore the court would de­cide whether mil­lions of Amer­i­cans who re­ceive tax sub­si­dies to buy health in­sur­ance on fed­eral ex­changes are do­ing so il­le­gally.

In his more than six years in the White House, Obama has to an un­usual de­gree — for a serv­ing pres­i­dent — of­fered strong opin­ions on how the court’s jus­tices should de­cide cases cen­tral to his legacy. In a few in­stances, those pointed opin­ions have sounded a lot like out­right crit­i­cism.

Obama’s will­ing­ness to plunge into the court’s busi­ness re­flects his back­ground as a con­sti­tu­tional law lec­turer, his ir­ri­ta­tion with the le­gal and po­lit­i­cal wran­gling sur­round­ing the land­mark healthcare lawand his view of the court’s role in Amer­i­can so­ci­ety.

“There’s a view that lib­er­als love the courts as the last bas­tion” for de­fend­ing the rights of the pow­er­less and un­der­priv­i­leged, said David Strauss, a law pro­fes­sor at the Univer­sity of Chicago. “He’s never bought into that stuff. He be­lieves that the courts are fine, but that pol­i­tics should run the coun­try.”

That view was es­pe­cially clear in 2012 when the jus­tices were re­view­ing the Af­ford­able Care Act’s con­sti­tu­tion­al­ity. At the time Obama ar­gued that the court hadn’t over­turned a law on a ma­jor eco­nomic is­sue, such as health care, since its bat­tles with Pres­i­dent Franklin D. Roo­sevelt over the New Deal. “Let me be very spe­cific,” Obama said. “We have not seen a court over­turn a law that was passed by Congress on an eco­nomic is­sue, like health-care” for decades.

“We’re go­ing to the ’30s, pre-New Deal,” he said in mak­ing the case for ju­di­cial re­straint.

Com­pared with to­day’s fights, Roo­sevelt’s bat­tles with the Supreme Court were far more poi­sonous. He was fu­ri­ous with the court for over­turn­ing sweep­ing pieces of leg­is­la­tion de­signed to pull the coun­try out of the Great De­pres­sion, and re­sponded by try­ing to pack the court with six ad­di­tional jus­tices.

“What has peo­ple reach­ing for the smelling salts to­day is by his­tor­i­cal stan­dards pretty mild,” Strauss said.

It’s un­clear whether Obama’s le­gal phi­los­o­phiz­ing has had any im­pact for good or ill on the jus­tices’ de­ci­sions. In 2012, Chief Jus­tice John G. Roberts Jr. sur­prised many when he wrote the opin­ion sav­ing Oba­macare from a con­sti­tu­tional chal­lenge. “The chief jus­tice is very at­tuned to history,” Strauss said. “It’s pos­si­ble he un­der­stood the court had tried to stay away from big po­lit­i­cal fights with the pres­i­dent and Congress.”

It’s also pos­si­ble that Obama’s crit­i­cism did lit­tle more than ir­ri­tate the jus­tices, who aren’t ac­cus­tomed to snip­ing from the ex­ec­u­tive branch.

“When I was so­lic­i­tor gen­eral, I would not have wanted Pres­i­dent Bush to be say­ing things like that, one way or another, about the Supreme Court or the de­ci­sions it was mak­ing,” said Theodore B. Ol­son, who served as so­lic­i­tor gen­eral un­der Ge­orge W. Bush and is a part­ner at Gib­son, Dunn & Crutcher in Washington.

Obama is in the un­usual po­si­tion of hav­ing voted against the con­fir­ma­tion of both Roberts and Jus­tice Sa­muel A. Al­ito Jr. whenhe

was in the Se­nate. The ten­sion be­tween the branches was es­pe­cially ap­par­ent in his 2010 State of the Union ad­dress, when Obama called out the court just days af­ter its de­ci­sion on cor­po­ra­tions’ abil­ity to sup­port or op­pose po­lit­i­cal can­di­dates.

“With all due def­er­ence to sep­a­ra­tion of pow­ers, last week the Supreme Court re­versed a cen­tury of lawthat, I be­lieve, will open the flood­gates for spe­cial in­ter­ests, in­clud­ing for­eign cor­po­ra­tions, to spend with­out limit in our elec­tions,” Obama said of the Cit­i­zens United v. Fed­eral Elec­tion Com­mis­sion rul­ing. The jus­tices sat mo­tion­less and ex­pres­sion­less, ex­cept for Al­ito. “Not true, not true,” he ap­peared to say as he shook his head.

In re­al­ity, though, it is un­likely that any of Obama’s state­ments on the court or its de­ci­sions — the long­est of which clocked in at just over three min­utes — had much im­pact on the court’s de­ci­sion in the most re­cent Oba­macare case.

“I don’t think it does any­thing,” said Charles Fried, a Har­vard Law School pro­fes­sor who served as Ron­ald Rea­gan’s so­lic­i­tor gen­eral. So why does Obama sound off? “Prob­a­bly be­cause he thinks it,” Fried said. “It’s hard not to think about these things. Whether it is a good idea to be so ex­plicit is another ques­tion en­tirely.”

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