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Editorial

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Obama and judicial review

Conservatives took great relish this week in attacking President Barack Obama for some ill-considered observations regarding the Supreme Court and its role in reviewing the administration's health care reform law. One would think that the nation's highest court had never been criticized before — or that the president's remarks had been something more than political spin in the first place.

Two things Mr. Obama said this week clearly weren't true. First, he suggested that it would be "unprecedented" for the court to overturn a federal law. And second, he claimed that health care reform had been approved by a "strong" majority of a democratically elected Congress. Well, an elected Congress, yes, but it was actually approved by a narrow, mostly party-line vote.

Still, one would think from the reaction in some quarters that the president had threatened a takeover of the judicial branch. Mr. Obama wisely clarified his remarks one day later to note that, of course, the court has authority to review any law passed by Congress but what would be unprecedented would be to veer so far from past legal interpretations of the U.S. Constitution's Commerce Clause as to toss out the Affordable Care Act.

Was the president's speech even an attempt to pressure the court? If so, it was spectacularly ill-timed, as it's likely the court made its decision in private deliberations several days earlier. In reality, it was the nation's chief executive exercising his own Constitutionally-protected right to express an opinion about a law that he believes in passionately — just like he did when he criticized the Supreme Court for its Citizens United decision during his 2011 State of the Union Address, something that also made conservatives (including some on the court) apoplectic.

Should presidents and members of Congress be prohibited from expressing an opinion about the third branch of government? Surely, that's the scariest possibility of all — that the men and women in black robes should not only have lifetime appointments but should be immune from criticism from elected officials, let alone the general public.

How quickly we forget the "Impeach Earl Warren" movement of the 1960s or President Franklin Roosevelt's efforts to stack the courts. There's always been a tension between branches of government; the system was designed that way. Indeed, the loudest critics of the courts (Judicial "activism," anyone?) have been the very conservatives who are so faux-outraged now.

Yet that didn't stop 5th Circuit Court of Appeals Judge Jerry Smith and two fellow Republican appointees on the bench from demanding theU.S. Justice Department produce a 3-page, single-spaced memo affirming the court's right to review legislation for its constitutionality. If it was an attempt to embarrass the administration, it backfired as it simply made Judge Smith appear thin-skinned, self-aggrandizing, petulant, and, frankly, partisan.

President Obama misspoke (somewhat embarrassingly so for a former law professor), but he clarified his remarks one day later. One can hardly blame the president for expressing support in his signature bill or in observing the considerable precedent on his side — a point made by numerous constitutional scholars since before the measure was approved two years ago.

Clearly, the incident falls well short of the "constitutional crisis" that the more breathless right-wing commentators have suggested in recent days. If every ill-considered remark is going to produce such pretend-outrage, Lord help the American public when gaffe-prone Mitt Romney's campaign is in full gear. Better break out the tranquilizers now.

Here's an idea. Could everyone agree to engage in a genuine debate about issues of importance affecting the American people without all the fake victimization and excess outrage between now and November? Voters know a temper tantrum when they hear one, so all the Sturm und Drang of recent days won't be missed.

Meanwhile, it would be wise for all involved to wait until the Supreme Court actually makes a decision before second-guessing it. That's likely only a couple of months away. And you can bet that whatever criticism judges felt this week, it will pale compared to the outpouring that will accompany that decision — no matter how the justices rule.

Copyright © 2015, The Baltimore Sun
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