One of the riffs du jour on the Internet today is about the apparent attempt by the President and his allies to “intimidate” the Supreme Court in order to get the “correct” decision on Obamacare.
David French’s post over at The Corner explains how dumb it is for the Democrats to try to influence the Court this way.
In my experience, federal judges are more likely to be angered than intimidated by direct attacks from politicians and pressure groups. They are “unelected” by design of the Framers, and that lifetime appointment gives them exactly the level of independence the Framers desired. Moreover, this is hardly the first time that the justices have faced high-stakes litigation, and it won’t be the last.
As I listen to President Obama, Senator Schumer, and others, I hear repeats of the legal arguments the Court already found wanting at oral argument. Will repeating simplified versions of those arguments before reporters or even angry crowds somehow make them more persuasive? Hardly. In fact, it merely reaffirms their weakness.
IANAL, but my father was, and he told me that the basic rule of litigation was stress the facts when they were in your favor, to stress the law when it was in your favor, and to yell and bang the table when neither was on your side. Do they really think that banging the table will change much at this stage of the game?
Is it November yet?
UPDATE 2–Well, it hasn’t taken very long for a court to react to the President’s remarks. The Fifth Circuit has asked a government lawyer for a written response from the DoJ concerning whether or not they consider Marbury v. Madison to still be good law. Oh, and scroll down to the update at the link to see that the Fifth Circuit’s reaction is not unprecedented.
UPDATE 3–A few days ago, I did a post where I suggested that the President was fighting outside his weight by picking a confrontation with Christians over the Obamacare contraception mandate. It looks as if he’s doing the same sort of thing with the Supremes and constitutional review. The phrase not ready for prime time comes to mind.
Is it 20 January, 2013 yet?
UPDATE 4–The President has issued a statement trying clarify his remarks. In his clarification he cites Lochner v. New York. He doesn’t seem to understand Lochner very well. David Bernstein does, and he comments at The Volokh Conspiracy.
UPDATE 5—John Hinderaker at Powerline corrects the President’s error in stating that the Supreme Court hasn’t struck down any laws that were “economic” or related to “commerce” since the Lochner decision over a hundred years ago. It zapped a part of Sarbanes-Oxley. It struck down the 1990 Mushroom Research, Promotion, and Consumer Information Act (Yes, Congress passed something like that) and Harbor Maintenance Tax Act and the …
One could be charitable and say that Barack Obama is a bullshitter who makes stuff up whenever he is in a tough spot, or one could say that he is a habitual liar. Take your pick.