[Posted by Karl]
I am having difficulty summoning outrage over Pres. Obama expressing confidence that the Supreme Court will uphold Obamacare or his suggestion that striking it down would be an unprecedented exercise in judicial activism. Allahpundit is correct that Obama is being a little more dishonest than usual. But not much more so than usual.
First, the general liberal hysteria following in the wake of last week’s oral arguments suggests that Obama (mostly) believes what he is saying. By ideology and training, he is as inclined to be dismissive of the legal arguments against Obamacare as the typical Ivy League academic.
Second, as a matter of politics, Obama surely would not express a lack of confidence that Obamacare is constitutional. The “judicial activism” trope is annoying for its sheer hypocrisy, but by no means unprecedented. Partisan attacks on the Supreme Court date back to the Marshall Court. Indeed, Marbury v. Madison was probably decided in the way it was — ruling the Court lacked jurisdiction to decide the case while establishing the principle of judicial review in dicta — under fear of Marshall’s impeachment (and fear Madison would defy the Court if it ruled against him).
In modern times, people are more likely to remember FDR’s court-packing scheme. The “court reform” plan backfired on FDR politically. Furthermore, while FDR’s attacks are often credited with influencing the Court to adopt a sweeping view of federal power that forms the backdrop of the current dispute over Obamacare, the history suggests otherwise. In the present, if Justice Kennedy is influenced by anyone, it is more likely to be Obamacare shills like Linda Greenhouse; Obama bigfooting the issue is likely counter-productive. The crtitique of judicial activism that gained steam with Richard Nixon was probably more effective because that activism likely moved blocs of voters into the GOP column — but conservatives have had at least their share of disappointments in this more recent period as well. If Obamacare gets struck in whole or part, it might energize Democrats, but likely won’t move Indepenedents, let alone Republicans. And it’s far from clear that it would even energize Dems all that much; the most recent precedent here is Obama attacking the Court to its face over Citzens United at the 2010 SOTU speech, to no noticable effect in the mideterm elections.
I can muster disdain for Obama’s comments, but outrage? I can save that energy for other things, like Obamacare itself.
UPDATE BY PATTERICO: ObamaCare’s mandate is an unprecedented expansion in the federal government’s power. A decision striking it down would not be activism. If the issue is unprecedented it is not the fault of the Supreme Court, but of the two branches of government that passed this unprecedented monstrosity.
Don’t create an unprecedented problem and then complain that the correction of that problem is unprecedented.
Update 2 (Karl): You know who did not care much for Obama’s comments? The 5th Circuit Court of Appeals:
In the escalating battle between the administration and the judiciary, a federal appeals court apparently is calling the president’s bluff — ordering the Justice Department to answer by Thursday whether the Obama Administration believes that the courts have the right to strike down a federal law, according to a lawyer who was in the courtroom.