Once upon a time President Obama limited himself to attacking the Supreme Court for its past decisions as when he used a State of the Union address to browbeat the Court’s justices sitting mere inches in front of him over their decision to overturn a federal ban on independent political expenditures in the Citizens United campaign financing case. The indignity inflicted on both the Court and the presidency by publicly castigating — falsely as it happens — the nation’s highest-ranking jurists with no opportunity for rebuttal as Democrats surrounding the justices leapt to their feet in a standing ovation should be nothing less than chilling to those who cherish the American system of government.

But with the oral arguments in the Obamacare case now history President Obama has taken his Chicago-style intimidation tactics up a notch attacking the Court before it issues an opinion as it goes about deliberating the fate of his signature legislation and with it perhaps that of his ability to keep using Air Force One and all those other nifty gadgets after 2012. “Ultimately ” he said at a press conference the other week “I am 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[.]”  

To which Robert Alt replied in National Review: “Really?  A strong majority? ….  Or a majority-so-paper-thin-that-Democrats-had-to-ram-the-bill-through-without-even-reading-it-on-a-party-line-vote-using-gimmicks-because-it-was-so-wildly-unpopular-that-it-led-Massachusetts-to-elect-a-Republican-Senator-who-campaigned-on-voting-against-the-bill.  Yeah I’m sure that’s what he meant.”

Obama wasn’t yet done: “I’d just remind conservative commentators that for years what we’ve heard is the biggest problem on the bench is judicial activism or a lack of judicial restraint — that an unelected group of people would somehow overturn a duly constituted and passed law.” This howler was too much even for the Washington Post’s liberal court-watcher Ruth Marcus who admitted that

Obama’s assault on “an unelected group of people” stopped me cold. Because as the former constitutional law professor certainly understands it is the essence of our governmental system to vest in the court the ultimate power to decide the meaning of the constitution.… We give the ultimate authority to decide constitutional questions to “a group of unelected people” precisely to insulate them from public opinion. 

Then again maybe the problem is pace Ms. Marcus that he was never a con law professor just a part-time diversity-hire lecturer who in his entire time attending and teaching law school had all of one short piece of published legal scholarship to his name. As for this notion that striking down Obamacare would be an instance of judicial activism the Wall Street Journal editorial page noted that

Judicial activism is not something that happens every time the Supreme Court overturns a statute. The Justices owe deference to Congress and the executive but only to the extent that the political branches stay within the boundaries of the Constitution.… The Court has often overturned laws that exceeded [Congress’ Commerce Clause] powers.… Far from seeking an activist ruling the ObamaCare plaintiffs aren’t asking the Court to overturn even a single Commerce Clause precedent.

At stake in ObamaCare is whether the High Court will ignore 225 years of constitutional understanding.… The activism charge is a political canard intended to obscure these grave issues and intimidate the Court….

Obama’s loyalists in the media and academe have been doing their part to join in the pile-on against the Court with a particular emphasis on trying to sway Anthony Kennedy. He’s the one conservative-leaning justice who is sometimes a swing vote and some believe is eager to be in the good graces of the Washington establishment. And so — cue the violin music — out come the sincere professions of respect for Kennedy’s far-sighted concern for the damage that overturning Obamacare might do to the Court’s apolitical reputation. According to Bruce Allen Murphy Lafayette College historian and author of several books on the Court   

He appears more concerned about his and his Court’s public image and legacy than many of his colleagues and he knows that a single vote can ruin a long-standing reputation.   

Never mind that according to a Rasmussen poll

Just before the highly publicized hearing on the constitutionality of President Obama’s health care law ratings for the U.S. Supreme Court had fallen to the lowest level ever measured by Rasmussen Reports. Now following the hearings approval of the court is way up.… Among all voters 28% now think the Supreme Court is too liberal 29% say it’s too conservative and 31% believe the ideological balance is about right.… 

And never mind too that judicial activism occurs when as  Robert Alt writes “judges write subjective policy preferences into their legal decisions rather than apply the constitutional or statutory provisions according to their original meaning or plain text.” It follows that the single greatest example of judicial activism — and thus it biggest black eye perhaps since Dred Scott [a ruling by the Supreme Court that people of African descent brought into the United States as slaves and their descendants were not US citizens or protected by the Constitution]  is the right-to-choice Roe v. Wade the one Supreme Court decision that is a litmus test for mere membership in the modern Democratic Party not to mention a seat on the Court.

Leading liberal constitutional scholar John Hart Ely wrote that what “is frightening about Roe is that this super-protected right is not inferable from the language of the Constitution the framers’ thinking respecting the specific problem in issue any general value derivable from the provisions they included or the nation’s governmental structure.” And a former law clerk to Roe’s author Justice Harry Blackmun wrote that as “a matter of constitutional interpretation and judicial method  Roe borders on the indefensible” and that the “opinion provides essentially no reasoning in support of its holding. And in the almost 30 years since Roe’s announcement no one has produced a convincing defense of Roe on its own terms.” And then there’s the offhand comment that Justice Ruth Bader Ginsberg made in a New York Times interview a few years back (emphasis added): “Frankly I had thought that at the time Roe was decided  there was concern about population growth and particularly growth in populations that we don’t want to have too many of.” Shiver. Silence.

Perhaps what might ultimately doom the attempts to alternatively intimidate and flatter Justice Kennedy into providing a fifth vote for upholding Obamacare might be the small fact that it was he who wrote the opinion in Citizens United and was sitting directly in front of the president as the latter tore into the opinion and by implication its author. Ironically Mr. Obama has since recanted his attack on the decision since it enables him to have the support of Super PACs in his current reelection campaign. But his words assailingCitizens United as an outright assault on democracy may yet be ringing in Justice Kennedy’s ears.

Fascinating isn’t it how the Borei Olam weaves His web?