Until this week, the most famous presidential rebuke of a sitting Supreme Court justice belonged to Andrew Jackson. “Justice Marshall has made his decision,” steamed the man accused by his opponents of Napoleonic ambitions. “Let him enforce it!”
Enter Barack Obama. Sensing an opportunity to salvage his re-election momentum, if not his marquee legislative accomplishment, the president has taken the unprecedented step of warning the court not to rule against him.
Politically, it’s a logical step. The administration fatally underestimated the strength of the case against the individual mandate, and Solicitor General Donald Verrilli failed mightily to press its case with confidence during oral argument. It’s possible that a ruling against the Affordable Care Act (ACA) will create fresh problems for Mitt Romney, but it’s certain that Obama will feel the sting, politically and personally, far more. Otherwise, he wouldn’t have said this:
[…] I think the justices should understand that in the absence of an individual mandate, you cannot have a mechanism to ensure that people with pre-existing conditions can actually get health care. So there’s not only an economic element to this and a legal element to this, but there’s a human element to this. And I hope that’s not forgotten in this political debate.
At one level, this is a noncontroversial point: you can’t guarantee that everyone gets health care unless you compel everyone to get health care. At another level, of course, that tautological observation carries significant moral weight — whether in terms of sustaining liberty or combating suffering. At the highest level, however, the one the president is operating on, the prescriptive message is clear: in the event of a conflict between the two, the utilitarian calculus of human suffering should take precedence over the Constitution and the interpretation of law.
That is a remarkable enough statement to direct at a Supreme Court. Some are incensed that Obama dares remind the court that a “strong majority” passed the ACA, when obviously the number of votes for a piece of legislation has nothing to do with its constitutionality. But the president’s admonition that the court mind its politics is particularly notable because he believes it is consistent with his warning that the court not indulge in judicial activism:
[…] 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. Well, this is a good example, and I’m pretty confident that this court will recognize that and not take that step.
Whatever you think about the moral urgency of universal healthcare, the president’s suggestion that only an activist court would strike down the ACA is being made in very bad faith, especially for a former professor of constitutional law.