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Obama to the Court: I'm Following FDR's Playbook

Many have commented on President Barack Obama’s remarks on the Supreme Court this week, when he stated “I'm 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,” referring to the passage of the unpopular ObamaCare, and the chance that in June, the Supreme Court will rule it unconstitutional.

The Wall Street Journal 's editors took on the president's claim that a negative Court ruling would be “unprecedented”:

Presidents are paid to be confident about their own laws, but what's up with that "unprecedented"? In Marbury in 1803, Chief Justice John Marshall laid down the doctrine of judicial review. In the 209 years since, the Supreme Court has invalidated part or all of countless laws on grounds that they violated the Constitution. All of those laws were passed by a "democratically elected" legislature of some kind, either Congress or in one of the states. And no doubt many of them were passed by "strong" majorities.

The so-called Affordable Care Act, moreover, was not passed with any kind of a strong majority. Democrats pushed it through the Senate on a purely partisan vote, attaining only a drop more than the 60 needed to prevent a filibuster. And in the House the vote was 219-212, despite a Democratic majority.

Now, Obama is too smart to not know about Marbury v Madison. As a graduate of Harvard Law School and later a "senior lecturer" at the University of Chicago, he obviously knew this case very well. Indeed, most students whose high schools still have history or civics have heard about it way before college.

So if we accept that the president was not ignorant of basic constitutional law and the concept of separation of powers, then we have to come up with other theories to try to explain why he made this statement.

The most obvious is that he was both trying to inflame his base before the election and to threaten the Supreme Court justices in advance, especially Judge Anthony Kennedy, the supposed swing vote who many think might side with the liberal justices. The president also said the following while making his remarks:

And I’d just remind conservative commentators that, for years, what we have heard is, the biggest problem on the bench was judicial activism, or a lack of judicial restraint, that an unelected group of people would somehow overturn a duly constituted and passed law.

There are two things wrong with the president’s statement, and it does not take a professor of constitutional law to spot them. First, judicial activism refers to justices making social policy via law, by using their power to mold the law into a mechanism for making policy, rather than leaving that task to Congress.