After hearings last week in which the court’s conservatives suggested they may rule the Affordable Care Act unconstitutional, Obama has taken an unusual approach: blasting a potential Supreme Court decision well before it is rendered. Obama has avoided using the justices’ names, but in appearances on Monday and Tuesday didn’t mince words in suggesting that a decision by the Court to strike down the law would be an unjustified act of judicial activism.
“The Supreme Court is the final say on our Constitution and our laws, and all of us have to respect it. But it’s precisely because of that extraordinary power that the court has traditionally exercised significant restraint and deference to our duly elected legislature, our Congress,” Obama said.
He added, “And so the burden is on those who would overturn a law like this. Now, as I said, I expect the Supreme Court actually to recognize that and to abide by well-established precedents out there.”
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In his comments, Obama has repeatedly said he believes the court will uphold the law, which would provide health insurance to 30 million Americans, including an estimated seven million African-Americans. But his tone in some ways contradicts those words; Obama sounds as if he is trying to shape the court’s opinion as much as predict it.
Strategically, this approach has some merit. While the court is composed of unelected judges who are theoretically anti-political, the justices do live in the real world. They are likely to read or see on television the impassioned arguments that the President of the United States is making on health care, as he makes the case that millions will be adversely affected by invalidating a law that provides health insurance for millions and protections such as requiring insurance companies to offer affordable plans to people with pre-existing illnesses.
Public speeches are also the only way for Obama to try to shape the views of the nine justices. He’s not allowed to bring them to the Oval Office and charm them, as he does when he needs to lobby members of Congress or heads of influential groups. He can’t show up at the Supreme Court and have a closed-door meeting with Justice Anthony Kennedy, who is believed to be the key swing vote in the decision.
At the same time, Obama’s sharp tone towards the court has its risks. Justice Samuel Alito mouthed the words “not true” during the State of the Union address in 2010 when the president attacked the court’s Citizens United decision, which allows corporations and unions to spend unlimited amounts on elections. The court views itself as a powerful, independent branch of government that carefully examines the law, not one looking to appease any politician, even the president. Obama risks angering them in his public comments.
Of course, none of this may matter. All nine justices have had years to consider their views on the individual mandate and other parts of the health care law. They may have already decided their positions, regardless of Obama’s advocacy.
Follow Perry Bacon Jr. on Twitter at @perrybaconjr