“I’m 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,” President Obama said Monday of the High Court’s consideration of his signature health care legislation. Congressional margins and Presidential opinion–even from a Harvard-trained law professor–do not a case for constitutionality make. But Obama’s remarks signal that it’s an issue for which he may be ready to go to war.
That’s the question burning up the intertubes in the wake of a less than stellar performance by Solicitor General Don Verrilli last week in oral arguments: If health reform is struck down, will Obama seek to make the Supreme Court an issue in the upcoming election? Jim Clyburn, the third ranking Democrat in the House, recommends it. Jon Meacham warns against it. It’s all a bit premature, given that the fate of the Affordable Care Act remains in limbo and political considerations are relatively trivial compared to the broader legal and policy implications of the court’s decision. But given Obama’s comments and, let’s be honest, two months of dead air before the Roberts Court reads everybody in on what’s going to happen, the issue is worth parsing.
The bench has not been the same kind of galvanizing political force on the left as it has the right. The 2010 Citizens United v. FEC ruling that opened campaign finance to the corporate fire-hose has become a liberal bugaboo, but it’s still a cuddly gremlin compared to the parade of horrors the conservative psyche has perceived perpetrated against it: active liberal courts in the 1960s and ’70s, the advent of Borking, the filibuster of Miguel Estrada and so on. Most relevantly, charges of “judicial activism” have been mainstays of Republican arm-waving for years.
Obama invoked these grievances in his Monday remarks on the court. “I would just remind conservative commentators that for years what we have 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. Well, this is a good example and I am pretty confident that this court will recognize that and not take that step,” he said. Again, his reasons for being confident are circuitous–Obama’s basically arguing that the court will uphold because Obama thinks it should–and his scolding, while not on par with Newt Gingrich’s call for “activist judges” to be arrested, closely mirrors traditional conservative gripes.
That may seem out of character for a constitutional law prof–noting that Justices are “unelected” is about as profound as observing that the Senate gives disproportionate power to smaller states: that’s just the way it is. But Obama’s complaints aren’t without precedent. In his 2010 State of the Union address, Obama admonished the justices sitting just a few yards away for “revers[ing] a century of law” in the Citizens United decision and called on Congress to “right this wrong.” Shots at the Supreme Court appeared regularly in his speeches at fundraisers and Democratic rallies during that year’s midterms.
So does that mean Obama will run against the health care decision if it goes against him? Not necessarily. For the last several years, the Supreme Court’s approval rating has been dropping. But in the mid 40s, it’s roughly as popular as Obama. According to Pew, last week’s publicity frenzy damaged the court in a minority of Americans’ eyes, but it did similar damage to the health care law itself. As an institutional targets in Washington go, Congress is much fatter target for Obama to hit.
More importantly, health reform isn’t Citizens United. Eight in 10 Americans said they disapproved of the court’s ruling in early 2010, including 65% who felt “strongly” about it and 72% who said they favored congressional action to turn to reinstate campaign finance restrictions. More recently, a March 2012 survey found that 69% of Americans favor banning super PACs, the advocacy groups CU helped create. The Affordable Care Act, meanwhile, splits the public closely and the main provision facing excision by the Supreme Court, a national requirement to purchase health insurance, is the least popular part of the law. A poll released last month found not only that a majority of Americans thought that the mandate would be struck down, 51% said it should be.
The President’s political team knows all this, which leaves two possibilities for what Obama was up to on Monday. He may simply hope that this is an issue that can excite the base and turn out Democrats in the fall. How effective this can be is unclear–oral arguments certainly animated liberal columnists, but I’m not sure the Democratic base shares their passion for the law, either in abstract or specifically the ACA. The other, more likely possibility is that Obama was not trying to influence November’s election; he was trying to sway the court itself. As much as politicians try to hold the judicial branch to an apolitical standard, Supreme Court Justices really are political actors. As his predecessors have, Chief Justice John Roberts worries about his institution’s reputation. For Obama, the threat of a scorched earth campaign against the High Court may be more effective than such an effort would be in and of itself.