By Kathleen Hennessey, Tribune Washington Bureau –
WASHINGTON — Attorney General Eric H. Holder Jr. told a federal appeals court that President Barack Obama respects the Supreme Court’s power to rule on the constitutionality of the nation’s laws, a statement that a week ago would have seemed obvious but on Thursday appeared aimed at ending days of White House stumbling over the tricky politics of the Supreme Court.
In a three-page letter, Holder defended Obama’s recent comments about the court and its impending decision on the health care law as “fully consistent” with established judicial precedent. Obama’s remarks had roiled Judge Jerry E. Smith of the 5th U.S. Circuit Court of Appeals in New Orleans. Smith made the unusual demand for an explanation from government lawyers in his courtroom after saying that the president appeared to be questioning whether courts have the power to invalidate acts of Congress.
The back and forth underscored the difficulty the president — along with his party — has had when it comes to using the court and its decisions for political advantage. While Republicans have long motivated their base voters by labeling the federal courts as bastions of liberalism and “activist judges,” Democrats have been less comfortable on that turf.
Until recently, that is. Spurred by the Citizens United decision, which allowed unlimited corporate contributions to political campaigns, and the perception that the court majority has become more openly aligned with the Republican Party, many Democrats are pushing to take on the court. That prospect increased greatly last week, when oral arguments about the health care law suggested the court may be poised to strike down the president’s signature legislation.
Both the White House and the Obama campaign have been mum on how the president would handle the political fallout of a ruling against his health care law. But Obama seemed to be primed for confrontation in his first remarks on the matter this week in which he declared such a move would be “unprecedented” and noted that the justices were “unelected.”
The statement prompted Smith’s demand and was widely mocked by critics and some legal experts as a misunderstanding of well established judicial precedent. Since 1803, the court has had the power to strike down laws passed by Congress.
Obama’s comments were all the more surprising considering that he is a former constitutional law professor. Even Obama’s law professor at Harvard, Laurence Tribe, told The Wall Street Journal that the president misspoke
Obama on Tuesday sought to clarify the remarks. It had been decades since the court had struck down an economic law based on the commerce clause, the issue at play in the health care case, he said.
Holder further affirmed the position on Thursday, writing “the power of the courts to review the constitutionality of legislation is beyond dispute.” White House spokesman Jay Carney said the president’s comments were merely an “unremarkable observation” about court precedent.
But for now, the president’s comments on the court will be closely watched for signs of how the White House is laying the groundwork for a bruising court ruling in an election year. For months, Democratic fundraising, stump speeches and ads have tried to make Citizens United a household name as an example of the court overstepping its bounds.