President Obama’s extraordinary public broadside on Monday against the Supreme Court, in reaction to questions posed by the justices during the course of three days of oral argument in the Obamacare case, is further confirmation that liberal supporters of Obamacare, including the president himself, are beginning to panic.
Indeed, the president’s outburst followed on the heels of three New York Times editorials last week on the subject, the first appearing the day after arguments began, challenging the skepticism expressed by several justices over the law’s constitutionality. Apparently it was sinking in that the apprehensions most Americans harbored about Obamacare – apprehensions that had been brushed aside by the president and his supporters – were being reflected in the questions raised by members of the court.
Under Supreme Court protocols, a preliminary vote on the law by the justices would have been held last Friday. These sessions are supposed to be confidential, yet there are reports that there may have been a leak to the president. If that indeed is the case, it should not be surprising that Mr. Obama felt it necessary to spring into action.
The oral arguments were held between March 26 and March 28. In an editorial dated March 27, “The Supreme Court’s Momentous Test,” the Times said:
In ruling on the constitutionality of requiring most Americans to obtain health insurance, the Supreme Court faces a central test: whether it will recognize limits on its own authority to overturn well-founded acts of Congress.The skepticism in the questions from the conservative justices suggests that they have adopted the language and approach of the insurance mandate’s challengers. But the arguments against the mandate, the core of the health care reform law, willfully reject both the reality of the national health care market and established constitutional principles that have been upheld for generations.
In a March 28 editorial dated titled “Activism and the Roberts Court,” the Times declared,
The ideological nature of the health care case was obvious on the last day of oral argument. By the time the proceedings were over, much of what the conservative justices said in court seemed like part of a politically driven exercise…. In fact, they were the kinds of policy questions that are properly left to Congress and state governments to answer, not the Supreme Court.
And in a March 31 editorial, “The Roberts Court Defines Itself,” the Times observed:
For anyone who still thought legal conservatives are dedicated to judicial restraint, the oral arguments before the Supreme Court on the health care case should put that idea to rest. There has been no court less restrained in signaling its willingness to replace law made by Congress with law made by justices
.…. The four moderates on the court have a leftish bent, but they see their role as stewards of the law, balancing the responsibilities to enforce the Constitution through judicial review against the duty to show deference to the will of the political branches. In that respect, they and the conservatives seem to be following entirely different rules.
…. If the conservatives decide that they can sidestep the Constitution to negate Congress’s choices on crucial national policies, the court’s legitimacy – and the millions of Americans who don’t have insurance – will pay a very heavy price.
The shrillness and utter lack of analysis reflects a desperation that is unmistakable. The other day the president followed up with some empty rhetoric of his own. He said that the court’s rejection of the health care law would be “an unprecedented and extraordinary step” and would amount to “judicial activism” on the part of “unelected” judges.
Of course, it the Supreme Court’s job to determine the constitutionality of laws enacted by Congress. In any event, Mr. Obama revealed his real thinking in this area in a 2001 interview, seven years before he was elected to the presidency. Here is part of what he had to say:
You know, if you look at the victories and failures of the civil rights movement and its litigation strategy in the courts, I think where it succeeded was to vest formal rights in previously dispossessed peoples…so that I would now have the right to vote, I would now be able to sit at a lunch counter and order, and as long as I was able to pay for it I’d be OK. But the Supreme Court never ventured into the issues of redistribution of wealth, and more basic issues of political and economic justice in this society.
And to that extent, as radical as I think people are trying to characterize the Warren Court, it wasn’t that radical. It didn’t break free from the essential constraints that were placed by the Founding Fathers in the Constitution, at least as it’s been interpreted, and the Warren court interpreted it in the same way that generally the Constitution is a charter of negative liberties. It says what the states can’t do to you, says what the federal government can’t do to you, but doesn’t say what the federal government or the state government must do on your behalf. And that hasn’t shifted….
So the president doesn’t seem to have a problem when an “activist” court delivers on his agenda. But he has a problem when the court may not permit him to do what most Americans don’t want him to.