Just about every player in connection with the President’s remarks about the Supreme Court seem to me to be acting oddly or imprudently.
What a terrible idea for the President to charge the Supreme Court with an “unprecedented, extraordinary step” of judicial activism if it strikes down parts of the health care law. It was not a bad idea because it constituted bullying of the Court. It was a bad idea – at least from the President’s perspective – because it makes it harder for the Justices to rule in favor of the President’s position. After his very public criticism, a vote to uphold the law by the Justices who sharply questioned the law at oral argument will invariably be seen as cowing to the President – an appearance, I am confident, the Justices very much want to avoid. In other words, by questioning the Justice’s independence, the President made it harder for the Justices whose votes he needs to act in his favor. That, I suspect, is why the President has tried to walk back his remarks.
Also surprising to me are conservative protests that the President has crossed the line in criticizing the Court as activist. President Obama was entirely accurate when he said: “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.” However imprudent and impolitic the President’s remarks, he was in essence mouthing a central conservative complaint about the judiciary since the 1950s. (I realize that matters are more complicated than this, but during the Obama years many conservatives have indeed been moving away from a jurisprudence of restraint.) Conservatives were on firmer ground in criticizing the inaccuracy of the president’s claim that striking down the health care law “would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress." And of course it is odd for President Obama to implicitly embrace judicial restraint as a matter of principle.
And how silly for the Fifth Circuit panel to ask the Justice Department to brief whether the Obama Administration believes that courts have the right to strike down a federal law. It is obvious that the President and DOJ believe courts have that power. And in any event that power in no way depends on the beliefs of the President or DOJ. The request for an answer on the question, based on a presidential remark not at issue in the case, seems like a political intrusion by the court into a political debate.
Update: Here is the Attorney General’s response to the Fifth Circuit. Bottom line: courts have the power of judicial review, legislation is presumptively constitutional, the Executive Branch often urges courts to respect the legislative judgments of Congress, and the President’s remarks are “fully consistent” with these principles.