Obama, running against Congress, could find a new foe in the Supreme Court

President Obama might be campaigning this summer not just against the GOP nominee and congressional Republicans but also the Supreme Court.

Obama faces a bigger and more direct threat from the court than any candidate in recent history. The justices are expected to rule in June on whether his signature healthcare law is constitutional, and oral arguments this week indicated there’s a good chance they will strike down at least part of the law: the mandate to have insurance.

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Some Democrats see a silver lining in that scenario, arguing Obama could rally his base by campaigning against an activist “right-wing court” that is taking away healthcare coverage from millions of Americans.

“I think this will be the best thing that has ever happened to the Democratic Party," Democratic strategist James Carville said on CNN this week.

Republicans, buoyed by signs that the court might axe a law they have long viewed a threat to individual liberty, are preemptively warning that attacks on the Supreme Court could damage trust in the judicial branch.

“I’m sure some Democrat colleagues might try to do that, which would be unfortunate, because we don’t need to weaken the court,” said Sen. Jeff Sessions (R-Ala.), the top Republican on the Senate Judiciary Committee.

Obama is already running against one branch of government, arguing the “do-nothing Congress” is standing in the way of legislation that would help the economy. If the Supreme Court strikes down his health law, the president would have the opportunity to do battle with the judicial branch as well.

Republican strategist Karl Rove argued this week it would be improper for Obama, a former constitutional law professor, to criticize the court while campaigning as an incumbent president.

Obama can either “announce he respects the court's decision,” Rove wrote in an op-ed, or “lash out against the court's majority.”


Rove compared the latter tack to the 2010 State of the Union address, in which Obama ripped the court’s Citizens United ruling as many of the justices looked on from the front rows.

"With all due deference to separation of powers, last week the Supreme Court reversed a century of law that, I believe, will open the floodgates for special interests, including foreign corporations, to spend without limit in our elections," Obama said in the speech.

Justice Samuel Alito could be seen shaking his head “no” and mouthing the words “not true” as Obama criticized the ruling. Republicans accused the president of being rude.

The president has steered clear of the Supreme Court debate thus far and has not commented publicly on the oral arguments in the case. Speaking Friday at a fundraiser in Burlington, Vt., Obama did not mention the court when touting his healthcare law.

Democrats have been less shy about criticizing the justices. Many of them say it’s the Supreme Court — not Obama — that should be wary of seeming too political. Even before this week’s oral arguments, Democrats had warned that a 5-4 decision against the healthcare law could have echoes of Bush v. Gore, the controversial ruling that decided the 2000 presidential election.

Their admonitions against a politically motivated decision only grew stronger after oral arguments that did not seem to go well for the Obama administration.

“The court would not only have to stretch, it would have to abandon and completely overrule a lot of modern precedent, which would do grave damage to this court in credibility and power,” Sen. Richard Blumenthal (D-Conn.) said Wednesday.

Although political strategists are focused on the political fallout from a decision overturning the healthcare law, that ruling is hardly guaranteed. Oral arguments are often a poor indication of how the court will ultimately rule, and supporters of the law argue it has precedent on its side.

If the court upholds the law and the insurance mandate, Republicans could also have the opportunity to turn the court into a rallying cry for their efforts to win back the White House.

Sen. Chuck Grassley (R-Iowa), a former ranking member on the Judiciary Committee, said Obama could not campaign against the court because the judicial branch is more respected than either Congress or the president.

Asked about the possibility of a 5-4 decision along partisan lines to uphold the law, Grassley said neither outcome would seriously hurt the court’s prestige.

“Unless I had evidence” that the ruling was strictly political, he said, “I would have to respect their decision.”

Sessions largely agreed. He said there’s a line between criticizing the court and attacking it, so Republicans wouldn’t have to stay completely silent if the court upholds the healthcare law.

“I think you can criticize the activism or say they’ve allowed politics to enter into it," Sessions said. "But they would have some basis for their decision — less, I think, but some basis for their decision."