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Obama’s Comments on the Supreme Court Were Not a Threat

Before Republicans get around to whining about what Obama said about their budget, they have to complete their whine about what Obama said yesterday about the Supreme Court. The President intimated that the Justices would be engaging in “judicial activism” if they overturned the individual mandate and other aspects of the Affordable Care Act.

Two Republican lawmakers today accused President Obama of “threatening” the Supreme Court. First it was House Judiciary Committee chairman Lamar Smith:

“He should not be in any shape [or] form threatening the Supreme Court and making statements that are inappropriate or deemed trying to intimidate the Supreme Court,” Rep. Lamar Smith (R-Texas) told Fox News Radio on Monday […]

“It is not unprecedented at all for the Supreme Court to declare a law unconstitutional; they do that on a regular basis, so it’s not unprecedented at all,” Smith said. “What is unprecedented is for the president of the United States trying to intimidate the Supreme Court.”

Then there was Sen. Mike Johanns:

“What President Obama is doing here isn’t right,” Johanns said Tuesday in an interview with local Nebraska radio station KLIN. “It is threatening, it is intimidating.”

“What is the president saying is that he’s saying, ‘Look, I get to decide what’s right and wrong for every individual in this country through the individual mandate and there is no judicial review. The courts can’t interfere with my power.’ Well wait a second here, that turns upside-down over 200 years of precedent.”

Orrin Hatch weighed in as well, saying that “It must be nice living in a fantasy world where every law you like is constitutional and every Supreme Court decision you don’t is ‘activist.’ ”

Is there any way to call what the President actually said yesterday an example of “threatening” or “intimidation?” He said that he expected the law will be upheld, that conservative judges upheld the law in the lower courts, and he made a policy argument in favor of the individual mandate. As Greg Sargent writes, that pales in comparison to an actual attack on the Court, from 1937.

Soon thereafter the Nation was told by a judicial pronunciamento that although the Federal Government had thus been rendered powerless to touch the problem of hour and wages, the States were equally helpless; and that it pleased the “personal economic predilections” of a majority of the Court that we live in a Nation where there is no legal power anywhere to deal with its most difficult practical problems—a No Man’s Land of final futility.

Furthermore, court injunctions have paralyzed the machinery which we created by the National Labor Relations Act to settle great disputes raging in the industrial field, and, indeed, to prevent them from ever arising. We hope that this Act may yet escape final condemnation in the highest court. But so far the attitude and language of the courts in relation to many other laws have made the legality of this Act also uncertain, and have encouraged corporations to defy rather than obey it […]

The language of the decisions already rendered and the widespread refusal to obey law incited by the attitude of the courts, create doubts and difficulties for almost everything else for which we have. promised to fight—help for the crippled, for the blind, for the mothers-insurance for the unemployed—security for the aged—protection of the consumer against monopoly and speculation—protection of the investor—the wiping out of slums—cheaper electricity for the homes and on the farms of America. You and I owe it to ourselves individually, as a party, and as a Nation to remove those doubts and difficulties.

Obama hardly said anything as stringent.

But this does cut both ways. All political parties jump back and forth from decrying judicial activism to praising the Court, depending on what the Court actually says from one case to another. It does not represent a threat or an intimidation. It does represent a “flip-flop,” in the common parlance, or at least a shift in emphasis depending on ideology. Nobody can really get away with denouncing the opposition for this rhetorical tactic. It’s too common on all sides of the aisle.

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David Dayen

David Dayen

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