There was the predictable firestorm that occurs whenever the president says anything. And that's as it should be, so long as the firestorm comes from politicians trying to leverage outrage for political purposes.
This bothered a judge in the Court of Appeals for the Fifth Circuit who demanded an explanation. He wanted the Attorney General to provide a clarification that would have to be three pages, single-spaced, making specific reference to Obama’s comments.
The next day, the president added, “We have not seen a court overturn a law that was passed by Congress on an economic issue, like health care, that I think most people would clearly consider commerce — a law like that has not been overturned at least since Lochner,” Obama said. “So we’re going back to the ’30s, pre-New Deal. . . . . The point I was making is that the Supreme Court is the final say on our Constitution and our laws, and all of us have to respect it, but it’s precisely because of that extraordinary power that the court has traditionally exercised significant restraint and deference to our duly elected legislature, our Congress. And so the burden is on those who would overturn a law like this,”
The Attorney General complied with the Fifth Circuit judge's requirement. He basically responded that nobody is seriously suggesting that the courts can't overturn unconstitutional laws, but that they shouldn't overturn the Health Care Act because it isn't unconstitutional.
The comments on the blogosphere are mostly predictable. Those who dislike the president see his comments as a virtual attempted coup d'etat, in which the president is trying to overturn the long-settled principle that the Supreme Court (and other federal courts) can declare acts of Congress to be unconstitutional. Those who like the president see his comments as consistent with the long standing rules we've lived with since Marbury v. Madison.
Interestingly enough, however, some conservative commentators think the Fifth Circuit went too far.
Here's what concerns me about this. In the old days, clients could say whatever they wanted to about the appellate courts, because the appellate courts usually didn't pay any attention to what litigants said. In fact, unless the litigant was someone important, the comments probably never caught the attention of anyone outside the litigant's immediate circle of relatives and friends, and of course his lawyer. Now, however, with the Internet, Facebook, Twitter, and the like, anyone can make a public comment that can be found by anyone else. I would hate to have to explain whatever my client might decide to tweet to an appellate judge.
The president's comment was, to me, just a bunch of politics and wasn't even particularly notable. The rules of politics require, however, that politicians seek to exploit whatever the other side has to say, no matter how innocuous. That trend doesn't need to extend to the Courts. The president's position on the Health Care Bill--like his position on a lot of things, was hardly unpredictable. The chance that the president would influence the Supreme Court in any way by his comments was essentially zero. The Courts shouldn't particularly care that the president thinks that a bill he signed was constitutional. Of course he thinks it's constitutional, otherwise he wouldn't have signed it. The Courts should give that the weight it deserves. It does make a difference that Congress and the president thought they were doing the right thing, even though they always think that and sometimes they're wrong. The Courts shouldn't get concerned about the president's public statements. They certainly shouldn't demand a three page single spaced explanation. They ought to at least give the appearance--however implausible it may seem to those who have decided that everything is political--of ignoring politics and deciding cases on the merits.
I don't think everything is political. I think the Courts, for the most part, try to follow long-standing precedent and reach results that are consistent with the Constitution and the law. Granted, I think they fail a lot, but I think they at least try to do the right thing.