With Health Care, Obama Joins Presidents Who Have Commented on Court

Meghan McCarthy

President Obama spent this week getting back into his former role of constitutional-law professor, trying to explain to the American people why the Supreme Court should uphold his signature health care law.

His lecturing skills proved to be a bit rusty. Obama was forced to clarify comments he made on Monday, when he said that it would be “unprecedented” for the Supreme Court to overturn a law passed “by a strong majority of a democratically elected Congress.”

“We have not seen a court overturn a law that was passed by Congress on an economic issue, like health care, that most people would clearly consider commerce,” Obama said on Tuesday. White House press secretary Jay Carney sparred with reporters for the rest of the week over whether the president misspoke.

Republicans, of course, seized on Obama’s comments as further proof that he wants to wield unprecedented power over Americans’ lives. In a speech in his home state of Kentucky on Thursday, Senate Majority Leader Mitch McConnell said that Obama’s comments were “intolerable” and an attempt to intimidate the Court into ruling the way he wanted.

A conservative District Court judge in Texas went further, requiring Attorney General Eric Holder on Thursday to submit a memo confirming that, yes, the judiciary has the right to overturn a law if they find it unconstitutional.

Despite some awkward wording, were Obama’s comments that unusual? Not really, several experts told National Journal. There is a rich history of presidents on both sides of the aisle commenting on the Supreme Court's role.

President Reagan "talked regularly about the need for unelected judges to respect the wishes of the elected branches of government,” said Jeff Shesol, a former Clinton administration speechwriter and the author of Supreme Power: Franklin Roosevelt vs. the Supreme Court, in an interview.  “It takes a highly developed sense of irony to come out and attack President Obama for saying what he did this week. Any pure reading of what the president said finds these were pretty mild comments.”

Some Court watchers have drawn similarities between Obama’s comments and the protracted fight that Franklin D. Roosevelt waged against a Supreme Court he believed was improperly blocking New Deal laws. But while Roosevelt and Obama both made public comments about how they wanted the Court to rule, the similarities end there.

“If you look at the Roosevelt record, there was a rolling conversation led by president for a period of two years or more about the Court and what it was doing,” Sheshol said. “Of course, there is a line out there, a point at which president might say too much, and certainly Roosevelt did that.… I don’t think President Obama has come anywhere close.”

That’s because in addition to speaking his mind on cases, Roosevelt also proposed stacking the Court with his own appointees and stripping the institution of some of its constitutional powers. Obama hasn’t said anything like that.

And, as Lee Epstein, a professor of law and political science at the University of Southern California, points out, the political situation Obama faces is vastly different from Roosevelt’s time.

“He’s made a comment, but he hasn’t proposed a plan to change the institution, to change the Supreme Court,” Epstein said in an interview. “There was a very different degree of Roosevelt support in House and Senate; both where overwhelmingly Democratic…. Clearly, it is not the same case here.”

Although Obama has not suggested changing how the Court works, this doesn’t mean the White House isn’t setting up a political fight with the high court, should it rule against his signature domestic policy achievement. A president’s bully pulpit is not used lightly.

“The comments are part of the atmosphere and will reinforce what’s at stake, [which] is nothing less than a possibility of a serious conflict between the Supreme Court and the White House,” said Jeffrey Rosen, a law professor at George Washington University, in an interview.

But that won’t be an easy fight, warns Sheshol.

“It is one thing for a president to tell us what he believes about the law and the Constitution, which is something I think presidents ought to do,” he said. “It’s another thing to campaign against the Supreme Court…. I think it’s a dangerous business.”

University of Texas law and government professor Sandy Levinson agrees, saying that the Supreme Court still garners some inherent trust from voters, even if they disagree with its decisions. That’s something that Congress and, to a lesser extent, the White House, have lost.

“The Court has a remarkable degree of freedom, because whatever they do they’ll have majority support,” Levinson said in an interview. If the Court overturns the law, a good portion of those who are disappointed will still believe is it the “duty of a good American to rally behind the Court.”