As President Obama walked back some of his tough rhetoric on the Supreme Court review of his administration's health reform law, a federal appeals court judge boiled over during a hearing on that same issue, saying Mr. Obama's statements were "a challenge to the federal courts."
On Monday, the President raised eyebrows at the White House by referring to an "unelected group of people" on the Supreme Court, arguing they would be wrong to overturn the Obama health law, labeling such a move an "unprecedented, extraordinary step."
Those words drew a sharp rebuke from Congressional Republicans, who accused the President of trying to intimidate the Supreme Court on health care reform.
"The President, more than anyone else, has an obligation to uphold the legitimacy of our judicial system," said Senate GOP Leader Mitch McConnell, who accused the President of showing a "fundamental lack of respect" for the Judicial Branch.
Those words also aggravated some on the federal bench, and that surfaced during a Tuesday hearing in the Fifth Circuit Court of Appeals on the same health care law, as Judge Jerry Smith rebuked a government lawyer, demanding that the Justice Department clarify the President's remarks.
"Does the Department of Justice recognize that federal courts have the authority in appropriate circumstances to strike federal statutes," Smith asked a slightly befuddled government lawyer, referring specifically to the President's Monday remarks.
"That has troubled a number of people who have read it as somehow a challenge to the federal courts or to their authority or to the appropriateness of the concept of judicial review. And that’s not a small matter," the Judge said.
Listen to the exchange:
http://link.brightcove.com/services/player/bcpid774331384001?bctid=1545862473001
At about the same time on Tuesday, the President tried to cast his comments in a slightly different light during a speech to a group of newspaper editors in Washington, D.C.
"We have not seen a Court overturn a law that was passed by Congress on a economic issue, like health care," since the New Deal, said the President, who avoided repeating the word "unprecedented" or his phrase about an "unelected group of people."
But Mr. Obama made clear he still thinks the Court should side with him and Congress, saying "the Court has traditionally exercised significant restraint and deference to our duly elected legislature."
"And so the burden is on those who would overturn a law like this," the President said.
As I have said before, judicial activism basically means a decision that politicians don't agree with - and certainly that would be true here for Democrats if the Supreme Court strikes down the Obama health law.
It is a reminder that while the Court is a legal body, it is also a very political one at times - as this seems likely to be the most political decision since Bush vs Gore settled the 2000 Presidential election.
