Obama criticizes Supreme Court because he can
President has voiced strong opinions on cases central to his legacy
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.”