Lord, from the furor you’d think Barack Obama had channeled Andrew Jackson and threatened to proclaim: “John Roberts has made his decision; now let him enforce it.”
What the president actually said was this:
“I’d just remind conservative commentators that for years what we’ve heard is the biggest problem on the bench is 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. “Well, here’s a good example. And I’m pretty confident that this court will recognize that, and not take that step.”
Sure, instead of focusing on the legislative legtimacy of the Affordable Care Act, Obama should have probably mentioned the vast array of precedents that the Court would be ignoring if its invalidates the law, and the potential impact on other important accomplishments, from New Deal legislation to the Civil Rights Act. But the major thrust of his remarks was to remind “conservative commentators” who are high-fiving each other over the prospective overturning of ObamaCare that this is precisely the kind of “judicial activism” they routinely deplore if they dislike the results.
The White House knows that the basic decision has probably already been made by the Court. But something will have to be said if the decision is adverse. What the normally level-headed Ruth Marcus calls “a preemptive strike on the Supreme Court” is really more of a preemptive strike on the huzzahs about the majestic supremacy of the law and the Constitution we are going to hear at nauseating volume and length if health care reform goes down.
Obama was probably also reminding Americans that the ACA was indeed duly enacted by Congress after a very extended debate, over a noisy minority exercising the filibuster power, and was not imposed, or, to use the stupid phrase conservatives deploy so often, “crammed down” by executive fiat. And it also may have been intended to remind Democratic voters that no matter how frustrated they occasionally become with his decisions, his policies, or with life in general, the power to shape the Supreme Court through appointments is pretty important, and should be on their minds in November.