WASHINGTON - President Barack Obama is laying groundwork to make the Supreme Court a campaign issue this fall, taking a political page from Republicans who have long railed against the decisions of liberal judges.
The emerging Democrat strategy to paint the court as extreme was little noted in this week's hubbub over Obama's assertion that overturning his health care law would be "unprecedented."
His statement Monday wasn't completely accurate, and the White House backtracked. But Obama was making a political case, not a legal one, and he appears ready to keep making it if the high court's five-member majority strikes down or cuts the heart out of his highly controversial policy initiative.
Article Photos
AP Photo
President Barack Obama speaks in the Rose Garden of the White House on Thursday.
The court also is likely to consider several other issues before the November election that could stir Obama's core liberal supporters and draw crucial independent voters as well. Among those are immigration, voting rights and a revisit of a campaign finance ruling that Obama has already criticized as an outrage.
"We haven't seen the end of this," said longtime Supreme Court practitioner Tom Goldstein, who teaches at Stanford and Harvard universities. "The administration seems to be positioning itself to be able to run against the Supreme Court if it needs to or wants to."
While Obama has predicted victory in the health care case now before the court, his administration could blame overreach by Republican-appointed justices if the law is rejected, said Goldstein, who wrote a brief supporting the law's constitutionality.
This can be dangerous ground, as Obama discovered. Since Franklin Delano Roosevelt, few presidents have directly assailed the Supreme Court. In Obama's case, he issued an indirect challenge, but the former constitutional law professor tripped over the details.
Obama told a press conference on Monday that he was "confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress."
The Supreme Court does sometimes overturn laws passed by Congress. Obama later clarified that he was referring to a narrow class of constitutional law, but even then Republicans and court scholars took issue. What's not in question is that the law wasn't approved by a strong, majority - the vote was a slim 219-212 in the House.
A Republican-appointed federal judge took umbrage at the suggestion that federal courts might be powerless to overturn such laws, and ordered the Justice Department to provide written assurance. He insisted the response be at least three pages, single-spaced.
Attorney General Eric Holder took on that task himself, telling the judge Thursday that "the longstanding, historical position of the United States regarding judicial review of the constitutionality of federal legislation has not changed."
The Supreme Court heard a rare three days of argument on the 2010 health care overhaul last week, and the court's conservative majority appeared deeply skeptical of the key provision, a requirement for individual health insurance. Justice Antonin Scalia, for one, appeared strongly in favor of striking down the entire law. A decision is expected by July.
Also Thursday, Senate Minority Leader Mitch McConnell had his say on presidents and the Supreme Court.
"The president did something that as far as I know is completely unprecedented. He not only tried to publicly pressure the court into deciding a pending case in the way he wants it decided; he also questioned its very authority under the Constitution," McConnell said.
The constitutional issue aside, Obama made it clear that the thrust of his argument is political.
"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," Obama said. "Well, this is a good example. And I'm pretty confident that this court will recognize that and not take that step."
Obama narrowed and clarified his original statement on Tuesday, under questioning at the Associated Press annual meeting. His spokesman spent the next two days defending both statements on both legal and political grounds.
University of Texas Law School professor and Supreme Court scholar Lucas Powe said Obama's original statement suggests he probably knows the law is in trouble and is seeking political gain.
"My instinct is that he was laying predicate for a campaign statement," Powe said. "People said he was threatening the court. You can't threaten the Supreme Court."
