- The Washington Times - Tuesday, April 3, 2012

President Obama on Tuesday narrowed his attack on the Supreme Court’s pending health care ruling, giving a more nuanced take on judicial review than constitutional scholars said he had done the previous day.

But hours later, a Reagan-appointed appeals court judge escalated the furor, ordering the Justice Department to explain by Thursday whether it believes the judicial branch can overturn laws — responding to the president’s suggestion Monday that the Supreme Court justices would be taking part in “activism” if they struck down his health care law.

Mr. Obama on Monday said it would be “unprecedented” for the court to overturn a law that passed by a wide margin in Congress. On Tuesday, while meeting with newspaper editors in Washington, Mr. Obama was asked to clarify his remarks, with the moderator pointing out overturning laws is the essence of what the Supreme Court does.

The president didn’t entirely backtrack, but he said if the justices overturned his law it would be the first time in decades — rather than unprecedented — that the court would have struck down a legislative effort to regulate the economy.

He said Americans must “respect” whatever ruling the court makes, and again urged the justices to show “restraint” in reviewing the law, which passed a politically divided Congress in 2009 and 2010 with strong Democratic support but no Republican votes.

“We have not seen a court overturn a law that was passed by Congress on a economic issue like health care — as I think most people would clearly consider commerce — a law like that has not been overturned at least since Lochner. So we’re going back to the ‘30s, pre-New Deal,” he said.

After Monday’s initial comments, Republicans accused Mr. Obama of trying to intimidate the Supreme Court. Sen. Orrin G. Hatch suggested the president was living in a “fantasy world,” and Senate Minority Leader Mitch McConnell said he was showing a lack of respect for the court.

“This president’s attempt to intimidate the Supreme Court falls well beyond distasteful politics,” Mr. McConnell said. “It demonstrates a fundamental lack of respect for our system of checks and balances.”

The 5th U.S. Circuit Court of Appeals, meanwhile, was hearing a separate challenge to the law when Judge Jerry Edwin Smith asked Justice Department lawyer Dana Lydia Kaersvang if she agreed the court can strike an unconstitutional law, according to a report by CBS News.

Although Ms. Kaersvang answered “yes,” Mr. Smith told her it’s not clear whether the president believes that to be true and ordered the Justice Department to submit a three-page, single-spaced letter by noon Thursday addressing its position on the issue.

Constitutional scholars said they believed Mr. Obama meant something more nuanced than what he actually said Monday, since judges overturn laws all the time.

“I think he must have been just thinking on his feet when he said that,” said Russell Wheeler, a courts expert at the Brookings Institution. “What he may have been saying is it’s more unprecedented for the court to overturn economic regulation than it has been to overturn legislation involving civil liberties.”

In a 1937 case over a law regulating the quality of milk, the court conceded that a slew of new economic regulations under the New Deal were constitutional, setting up a precedent to which it has since largely adhered.

“I think he meant that ever since 1937, the Supreme Court has been deferential to economic laws passed by Congress and has struck down very few,” said Jeffrey Rosen, a law professor at George Washington University.

The president also implied it would be “activism” for judges to strike down the law, taking a swipe at conservatives, who have long complained that judges “legislate from the bench” by overturning laws passed by Congress.

“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,” Mr. Obama said. “Well, there’s a good example, and I’m pretty confident that this court will recognize that and not take that step.”

But according to Mr. Rosen, Mr. Obama has the credibility he needs to complain about judicial activism.

“This is something he’s been doing since long before he became president, so he has standing to make this argument,” Mr. Rosen said, pointing out that Mr. Obama wrote a chapter about it in his book “The Audacity of Hope.” “He’s been preparing for more than a decade to criticize judicial activism whether it’s supported by conservatives or liberals.”

Ilya Shapiro, a fellow at the Cato Institute, said both sides like to throw the term “judicial activism” at the court when it makes decisions they oppose. But in his view, the justices should only be concerned with whether the court interprets the law correctly under the Constitution.

” ‘Judicial activism’ is everybody’s favorite bogeyman, but neither the left nor the right can provide a definition beyond Potter Stewart’s famous dictum: ‘I know it when I see it,’ ” Mr. Shapiro said, referring to the former Supreme Court justice who said he couldn’t define pornography but that he knows it when he sees it.
“Most people who use the term don’t have a coherent definition of it,” he said. “It typically just means judicial opinions with which they disagree.”