WASHINGTON, April 4 (Reuters) - When President Barack Obama
renewed his political battle with the U.S. Supreme Court this
week, he was drawing on the experience of another Democratic
president, Franklin Roosevelt, who fought the court some 75
Obama criticized the possibility the court will strike down
his healthcare law when it rules on the case, angering
Republicans and even drawing counter-fire from a U.S. appeals
court judge in another case.
In 1936 Roosevelt, angry at the rejection of some of his
"New Deal" social and economic programs following the Great
Depression, proposed legislation that would have allowed him to
appoint a new justice for every sitting justice over 70.
The proposal, which became known as Roosevelt's "court
packing" legislation, died in the face of widespread opposition,
including from fellow Democrats, and after a shift by the
Supreme Court in upholding his programs.
It is rare but not unheard-of for a president to comment on
a pending Supreme Court case. More unusual was the response to
Obama's remarks from federal Judge Jerry Smith, a Republican
appointee, in a case stemming from the healthcare law.
At a court hearing in New Orleans on Tuesday, Judge Smith
demanded a letter by Thursday from Attorney General Eric Holder
on whether the Justice Department recognizes that judges have
the power to strike down unconstitutional laws.
Obama ignited the latest row on Monday when in blunt
language he said striking down the healthcare law would amount
to an "unprecedented, extraordinary step" of "judicial
activism," the very charge that conservative Republicans have
leveled against the court for years.
In remarks on Tuesday that seemed more conciliatory, Obama
referred back to the history from the 1930s, saying that had
been the last time the Supreme Court overturned a law passed by
Congress intended to address an economic problem such as
"The point I was making is that the Supreme Court is the
final say on our Constitution and our laws, and all of us have
to respect it, but it's precisely because of that extraordinary
power that the court has traditionally exercised significant
restraint and deference to our duly elected legislature, our
Congress," he said.
In his remarks Obama appeared to signal how, if the court
strikes down the law passed two years ago, he might turn the
court's 5-4 conservative majority into a campaign issue ahead of
the Nov. 6 election, in which he seeks a second four-year term.
The court will decide for the first time whether Congress
overstepped its powers by requiring most Americans to buy health
insurance by 2014, whether they want it or not.
Jeff Shesol, author of the book "Supreme Power: Franklin
Roosevelt vs. The Supreme Court," said there were historical and
legal parallels between the battle now and the one in the 1930s.
"The question at the core of the New Deal case is the
question at the core of the present case -- the ability to
create national solutions to national problems," said Shesol, a
White House speechwriter when Bill Clinton was president.
Northwestern University Law School professor Eugene
Kontorovich said Obama could be expected to argue against the
high court overturning the law since that was what his own
advocates at the court argued last week.
"There's no constitutional problem, there's no obvious
impropriety, and one might even say that the plaintiffs are
talking about their case all the time ... so maybe why shouldn't
he talk about the case?" he asked.
Kontorovich did take issue with the notion raised by Obama's
comments that overturning a law passed by a strong majority in
Congress would be unprecedented, saying that laws were ruled
Earlier in his career, Obama taught constitutional law at
the University of Chicago, but his comments on the judiciary
will have no sway with the justices themselves, said Tom
Goldstein, a lawyer who argues before the court and is a founder
of SCOTUSblog, a website that follows the court.
"The court is going to do what it does and what it thinks is
right," Goldstein said.
Obama was on solid legal ground with his comments, Goldstein
added. "He certainly wasn't challenging judicial review, and
he's right that it has been many decades since the Supreme Court
struck down a statute as significant as this one."
The Supreme Court's healthcare ruling is expected by the end
of June, in the midst of the presidential campaign. All of
Obama's would-be Republican challengers oppose the law and have
vowed to repeal it.
At a Medicare fraud summit in Chicago on Wednesday, U.S.
Attorney General Eric Holder said the administration would
respect the court's decision.
The critical remarks were not the first Obama had directed
at the Supreme Court.
In his 2010 State of the Union address, Obama criticized the
court ruling known as Citizens United, which gave corporations
the constitutional free-speech right to spend unlimited amounts
of money to support or oppose candidates for federal office.
Justice Samuel Alito, one of six justices sitting directly
in front of the president at the time, shook his head and
mouthed the words "not true" when Obama said that ruling
"reversed a century of law" and would open the floodgates for
special interests to influence elections.
Chief Justice John Roberts, who may control the outcome in
the healthcare case along with moderate conservative Justice
Anthony Kennedy, later said he found the State of the Union
incident "very troubling" and compared the atmosphere to a
"political pep rally."
Rulings on such controversial issues as abortion have made
the court a political issue at election time for some years,
drawing criticism from both parties. During the 2000 campaign,
George W. Bush came out against judicial activism. He said he
believed judges should not take the place of legislators.
In 1968, when Republican Richard Nixon ran for president, he
campaigned against the Supreme Court and complained that the
liberals under Chief Justice Earl Warren had given too many
rights and legal protections to criminal defendants.
(Reporting by James Vicini; Additional reporting by Jeremy
Pelofsky and Joan Biskupic in Washington and Jessica Wohl in
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