Since the Supreme Court heard oral arguments regarding the Constitutional issues of the health care law, President Obama has launched his own war of words, putting Mitt Romney on the shelf for a while. He has made some statements that have raised the ire of other federal judges, and has caused a great deal of controversy with what can only be described as some very misleading remarks. It also leaves one wondering if he is simply promoting his support of the legislation, or if he doesn’t understand the role of the Court and the meaning of separation of powers.
Admittedly, the President has a lot riding on this law. Some have said, given that it was the cornerstone of his 2008 campaign, as well as his presidency, that without it, all he has left is “I killed Osama bin Laden”. I don’t think that remarks like that are completely accurate or that they add anything to the debate, but the President appears to be more than a little invested in seeing that the health care law survives in tact.
The statement he gave on April 2, during a news conference was as follows:
“Ultimately, 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. 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. Well, this is a good example. And I’m pretty confident that this Court will recognize that and not take that step.”
The next day, after receiving some criticism, and in an effort, according to the White House, to clarify that remark, President Obama stated that he meant “a law that was passed by Congress on an economic issue.” That really didn’t make things much better, and it still isn’t entirely true. The entire purpose of the Supreme Court is to rule on Constitutional issues and that includes laws passed by Congress. There have also been more than a few of those laws and resulting Court decisions, that dealt, in some way, with interstate commerce, and therefor effected the economy.
My criticism of his remarks is based on the simple fact that he really should know better. The case law that he is talking about is something any first year law student would be able to cite. Our President was a member of the Harvard Law Review and a teacher of Constitutional Law, which should make him an expert on the subject. The statements he is making about the Court and the law are, at best, disingenuous, and at worst, misleading to Americans who give weight to his opinions.
During an election cycle, we’ve all come to expect rhetoric and spin, from both parties, and all candidates. President Obama has engaged in a debate with the Supreme Court, and that could certainly be considered unprecedented. It isn’t the first time that he has commented on their decisions. During the 2010 State of the Union Address, the President made it known that he had nothing but disdain for their holding in the Citizens’ United case. I agree with him that it was a dumb decision, and the Court has had more than their share of those, but to criticize them in that type of forum is more than bad manners, it’s also a violation of an unwritten protocol. I understand that, at any given moment, one or more of them may fall asleep during the speech, but that, by no means, is a license to be disrespectful of the Court.
For the President, such open criticism may very well work against him. This Court is divided along decidedly disparate perspectives. There are five members who tend to be conservative, while the other four lean towards more liberal philosophies. Ideally, the Court is supposed to put their epistemological differences aside, ruling only according to constitutional precedent and guidelines. Time and again, however, decisions are rendered through 5-4 votes. This not only demonstrates the fact that they do, at times, let their own philosophies get in the way of reason, but also sends the message that the Court really has decided on nothing.
I also think that it’s worth mentioning that at least two of the Justices should have recused themselves, as their interests in the health care law could be considered as less than objective. Justice Kagan was an advocate for the law while Solicitor General and wrote in an email, “I hear they have the votes, Larry!! Simply amazing,” on the day Obamacare passed through Congress. Justices Thomas and Scalia attended events held by the Federalist Society, a group which strongly opposed the legislation. Thomas’ wife was a lobbyist for the Heritage Foundation, another opponent of the law, and was often seen at speaking engagements wearing headgear resembling that of the Statute of Liberty.
On the other hand, when they want to do the right thing for the Country and maintain the integrity of the Constitution, the Court’s efforts are obvious and nothing short of remarkable. The decision in Brown v. Board of Education was a unanimous one, due in large part to the leadership of Chief Justice Earl Warren. Brown was meant to be a message, to everyone, that the separate but equal doctrine would no longer be tolerated. Cases like Brown, and others, show that the Court is capable of greatness. President Obama, actually, all of us should understand that the Justices are also human and can decide issues on less than lofty principles. The President may continue his campaign for the health care law, while at the same time, pleading his case to the Court and voters alike. In a couple of months, one way or another, all of us will be reminded that they always have the final word.