Tuesday, April 3, 2012


President Obama has pronounced himself concerned that a bunch of unelected justices of the Supreme Court might take the "unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress."

What an amazing statement.

This is a man who taught constitutional law at a law school far better than mine. This is a man who learned constitutional law at Harvard.  He was the editor of the Harvard Law Review, for heaven's sake.  He of all people should know that among students of the Constitution, the single most famous Supreme Court case dealt with precisely that issue in 1803. The Federalist Papers debate the matter, but Marbury v. Madison actually held that the Court had the power to overturn properly adopted laws if they contravened the Constitution.

Instapundit thinks Obama's statement means that he believes he will lose. I think that's right. If nothing else, Obama's stupidity may just have driven Kennedy into the conservative coalition on this issue. But I also think that it means that Obama will not simply lose the case in the Supreme Court. I think Obama just lost the election. 

The popular thinking has it that the losing side in the Obamacare debate will be energized, thus increasing their chances in the Presidential election. Until now, I agreed, although I was hopeful that overturning the law would not energize the left sufficiently to win.  With Obama's incredibly clumsy political attack on the Court, that changed.

If Obamacare is upheld by the Supreme Court, I think that the Republican Party will be the beneficiary of a tidal wave of voters turning out to drown that monster in its infancy. While it is true that, if the law is overturned, Obama will be able to rally his base with that issue, he has just provided a much larger and much more substantial issue to the Republicans.

Remember the 2010 State of the Union Address in which Obama scolded the Supreme Court for its decision in Citizens United overturning some of the limits imposed by federal law on political contributions? There was considerable grumbling on the right about what Obama said at the time. Mostly, it seemed unfair to address such comments to people who could not, in that or any other setting, respond. 

But his current statement is far worse. It seems that Obama's view is that a Supreme Court determination that a law is unconstitutional should not result in overturning that law because it was signed by the President after being duly adopted by Congress by the thinnest of margins (contrary to Obama's claim) and without a single vote from the minority party (thank you Mitch McConnell and John Boehner).

Between the 2010 State of the Union flap and this latest gaffe, is it now apparent that his vow to "fundamentally transform" America means that he must appoint Supreme Court justices who view the Court as subordinate to the elected branches.  How many justices with that view would have to be appointed to the Court before it would no longer fulfill the role, adopted more than 200 years ago, as one of the prime components of the Constitution's checks and balances?


  1. If the individual mandate is struck down and ruled inseverable, the Democratic base will rally...but only the base. The independents have always been luke warm on ObamaCare, and most of them will be OK with the ruling.

    It doesn't matter how fervent your base is if the only support you have comes from your base, and your base is only 30% of voters. So, I don't think striking down the individual mandate will produce big political results for Obama.

    ---Tom Nally, New Orleans

  2. I agree that a Supreme Court loss will energize only his base and that may well be insufficient to win in November given the general distaste for Obamacare. My point was not that he would win, it was that his chances of winning would increase.

    But note that Intrade has his chances of reelection at about 60%.