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September 1, 2015 / 17 Elul, 5775
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The President And The Supreme Court: Philosophy And Politics

Much attention has properly been paid to President Obama’s unprecedented remarks about the Supreme Court, which, he worries, may find his signature health care law unconstitutional. It will be recalled that the president spoke after the oral argument in the case in which the justices asked many highly critical questions about the constitutionality of the law and comments from many legal observers that the law is in trouble. There were also intriguing suggestions that a preliminary vote by the justices had a majority in favor of striking down the law or parts of it and that this news was leaked to the president’s aides, prompting his warning to the court. But as extraordinary and significant as it was for a president to threaten the Supreme Court while it was in the process of fulfilling its constitutional duty, there is more to the story.

The statement of the president of the American Bar Association is instructive:

President Barack Obama’s remarks…speculating about the Supreme Court’s potential decision in the health care legislation appeal are troubling. Particularly worrisome was his suggestion that the court’s decision in this case could serve as a “good example” of what some commentators have cited as “judicial activism or a lack of judicial restraint” by an “unelected group of people.”

It is incumbent on all our elected officials – including those aspiring to hold office – to continually demonstrate that the courtroom is not a political arena. It is a measure of a free society that individuals are able to openly disagree with court decisions, but we should expect our leaders to refrain from partisan statements aimed at judges fulfilling their constitutional role and responsibilities.

The statement alludes to the fact that while presidents and other political leaders in the past have been critical of certain decisions of the Supreme Court, this was the first time in memory that the criticism was leveled in the form of a veiled threat that a particular decision would be used as an issue in an upcoming election campaign – before the case is even decided. The ineluctable message from the president was “Decide my way or I will drag you through the mud of a nasty political fight.”

Frankly, this smacks of a decidedly improper effort to influence a court into making a particular decision. Mr. Obama is a lawyer, an officer of the court, so there are some serious ethical questions about his comments.

Two more points. Many have argued that the president’s statements were not only designed to intimidate the justices to vote his way but also to lay the groundwork for campaigning against a “conservative majority” on the court should his healthcare plan be rejected. Thus, they say, Mr. Obama’s outburst was likely meant to get one of the five conservative justices to vote his way, and failing that he would he would at least have his anti-conservative ploy in place for his reelection campaign.

A savvy attorney suggested to The Jewish Press, however, that more than likely the leak about the preliminary vote was not that there was a 5-4 conservative-liberal divide to strike down the law. Rather, the vote was 6-3, with one of the votes to strike down the law coming from a defecting liberal justice. President Obama’s tirade was designed to at least get the liberal justice back on the reservation so as to preserve his campaign argument even if his health care law went down.

Finally, it should be appreciated that the president’s attack on the court was in sync with much of his background. His early career as a “community organizer” was nothing if not dedicated to arguing that the law oppressed the needy and the politically impotent and needed to be overcome or changed. As we noted last week, years ago Mr. Obama criticized interpretations of the Constitution that defined it as what the government could not do to a citizen rather than what it had to do for a citizen. Of course, the former is what the very words of the Constitution proclaim.

The president evidently views the Supreme Court as a real threat to his view of the proper role of government and he’d like the justices to get out of the way. But that’s not how this democracy works.

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