President Obama has backpedaled somewhat on his remarks warning the Supreme Court of the perils of “judicial activism.” Meanwhile a federal judge and some editorials questioned his posture on the court. Other commentators leapt to Obama’s defense.
The fate of Obama’s signature domestic achievement, federal health care reform, will be decided by a Supreme Court ruling on the Affordable Care Act’s constitutionality. On Tuesday, Obama elaborated at a meeting with newspaper editors on his pointed remarks a day earlier (see Gavel Grab for details). According to a USA Today article, Obama said on Tuesday:
“The point I was making is that 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. And so the burden is on those who would overturn a law like this.”
In Texas, Fifth U.S. Circuit Court of Appeals Judge Jerry Smith on Tuesday ordered the Justice Department to explain the president’s comments on the federal health care case, and to clarify the president’s views about authority of courts to find unconstitutional an act of Congress. “I want to be sure that you are telling us that the attorney general and the Department of Justice do recognize the authority of the federal courts — through unelected judges — to strike acts of Congress or portions thereof in appropriate cases,” Judge Smith said.
Editorials in the Washington Post and Des Moines (Ia.) Register suggested the chief executive’s remarks were out of bounds, or close to it. His initial “comments strayed perilously close to a preemptive strike on the court’s legitimacy if it were to declare the [health care law's] individual mandate unconstitutional,” the Post editorial declared, and Obama “was wise to revise and extend his remarks Tuesday.”
The Register editorial was headlined “An ironic claim of judicial activism,” and it pointed out the frequency with which critics from the right have used the criticism to assault courts whose rulings they disagree with.
“It was a fairly remarkable pitch from a sitting president while the Supreme Court has a case under consideration,” the editorial said about Obama’s remarks on Monday.
“Whatever it rules,” the editorial said, “the court deserves the benefit of doubt that it will rule based on what judges believe the Constitution says, not what they might want it to say as ‘judicial activists.’ The courts deserve that benefit from both ends of the political spectrum.”
Others questioning Obama’s approach included columnist Jules Witcover in the Chicago Tribune, who also offered a brief history lesson about President Franklin Delano Roosevelt’s failed court-packing plan; and Andrew Rosenthal in a New York Times blog post, entitled “The President Fumbles the Court Issue.”
In a New York Times column, Maureen Dowd mocked those who had questioned Obama’s stance. She denounced the court, saying “It has squandered even the semi-illusion that it is the unbiased, honest guardian of the Constitution. It is run by hacks dressed up in black robes.” In the Newark (N.J.) Star-Ledger, Tom Moran wrote a commentary entitled, “On Supreme Court’s Affordable Care Act case, guess who wants judicial activism.”
With debate around the Affordable Care Act at a fever pitch, one commentator went so far as to discuss impeachment. “Impeach the Supreme Court Justices If They Overturn Health-Care Law,” declared the headline for a Daily Beast essay by David Dow, who teaches at the University of Houston Law Center.