So, I have a dog and sometimes I say things like “do not nudge open the bathroom door and rip up all the toilet paper,” or “you are not allowed to take my socks and hide them under my bed.” When I say these things, she looks at me as if she understands or at least basically respects my authority. But when I leave the bathroom door slightly ajar or I put my socks on the floor, she goes right back to ripping up paper or hiding socks.
You see, she’s a dog. And she’s gonna do what she’s going to do.
In all important respects, the Supreme Court of the United States is indistinguishable from my dog. With lifetime appointments for the justices, the Court is going to do what it wants, when it wants to, and they don’t much care what the “executive” happens to think they should do.
If you don’t want the Court to rip up your toilet paper, don’t leave the door open. Because scolding them about what they should or should not do has little effect, as President Obama is about to find out….
Obama has made his first public comments about the Affordable Care Act oral arguments. The president said that he’s confident the Court will uphold the law. And, of course, the Court would uphold the law had if it been championed by a Republican president. But we’ve got a highly politicized Court that is arguably the most conservative since the 1930s. That’s what matters, not the law. Obama was a constitutional law professor; he should know that.
In any event, after expressing confidence, the president then went on to scold the nine. From the Washington Post:
President Obama challenged the Supreme Court on Monday to uphold his administration’s sweeping health-care reform legislation, arguing that overturning the law would amount to an “unprecedented, extraordinary step” of judicial activism…
Obama made his argument in unusually blunt language that was rare for a sitting president during a pending case, emphasizing the high stakes in an election year and signaling that the White House might seek to turn a loss in the high court into a campaign issue aimed at rallying the president’s liberal base.
“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,” Obama said during a Rose Garden news conference. “Well, this is a good example. And I’m pretty confident that this court will recognize that and not take that step.”
This unelected group of people overturn “duly constituted and passed law[s]” all the time. That’s not the problem (at least if you believe in judicial review). The problem, if there is one, is why they overturn laws. Is it because of actual legal concerns? Or is it because of ideological or policy differences? When the Court injects itself into politics, as it’s doing here, the Court is acting at its weakest.
Obama adopting the language of conservatives on judicial activism is just another communications misstep in this whole health care saga.
If the Court strikes down Obamacare, it won’t be because of law, it’ll be because they don’t like the policy. It’ll be Anthony Kennedy usurping Congressional authority to regulate. That’s the argument the president should be making.
Not that the Court will care about Obama’s statements at all. They’re not going to be influenced by the president — they have their jobs for life! That’s the whole point of being “unelected.” If Obama is arguing to the public, he’s doing it wrong. If Obama is arguing to the Court, he is wasting his considerable rhetorical skills. He might as well try to train Bo to use the White House toilet.
Telling the Supreme Court not to rip up the Affordable Care Act will get Obama nowhere. The way to go would have been to not give the Court the opportunity in the first place. And that, my friends, is what we call “single-payer.”
Obama ‘confident’ Supreme Court will uphold health care law [Washington Post]
Supreme Court May Be Most Conservative in Modern History [FiveThirtyEight]