It’s a bum rap.
True, Obama is talking about the value of Obamacare at the same time the justices are nearing a decision on a challenge to one of its key components: subsidies to enable Americans to purchase health insurance through federal exchanges as well as those established by states. If the court accepts the argument that the law allows subsidies only for policies purchased on state exchanges, his signature achievement will be in big trouble.
And Obama has alluded to that possibility in recent statements. He said this in a speech to the Catholic Health Assn.:
“I understood folks being skeptical or worried before the law passed and there wasn’t a reality there to examine. But once you see millions of people of having healthcare, once you see that all the bad things that were predicted didn't happen, you’d think that it would be time to move one. Let’s figure out how to make it better.
"It seems so cynical to want to take coverage away from millions of people; to take care away from people who need it the most; to punish millions with higher costs of care and unravel what’s now been woven into the fabric of America.”
If this was a signal to the court (which he didn’t mention), it’s a subtler one than he sent before the justices’ last ruling on the ACA in 2012. Before that decision, which upheld the law’s individual mandate, Obama said: "Ultimately 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” — never mind that the court does exactly that all the time, sometimes at the White House’s request.
But, whether it’s subtle or obvious, presidential lobbying of the court is no big deal. The justices are all big boys and girls. Like all federal judges, they have lifetime appointments and ought to be able to withstand pressure from the president, the press or the demonstrators who often congregate near the court building.
That principle was emphasized in Bridges vs. California, a landmark 1941 decision involving the Los Angeles. Times. In that case, the Supreme Court overturned a contempt-of-court citation that had been issued against this newspaper because of three editorials, including one evocatively headlined “'Probation for Gorillas.” In that editorial, the newspaper opposed probation for two union members convicted of assaulting non-union truck drivers.
“Judge A.A. Scott will make a serious mistake if he grants probation to Matthew Shannon and Kennan Holmes,” the editorial thundered. “This community needs the example of their assignment to the jute mill.”
Writing for the Supreme Court, Justice Hugo Black said that to treat the editorial as a substantial influence on the judicial process “would be to impute to judges a lack of firmness, wisdom or honor, which we cannot accept as a major premise.” Current Chief Justice John G. Roberts Jr. should be assumed to have as stiff a spine as Judge A.A. Scott.
It would be a different situation if Obama had indicated that he would disregard an adverse decision by the court (a possibility that at least one commentator has broached). But the worst response such a ruling is likely to elicit from the president is a strong condemnation, similar to his denunciation (and distortion) of the court’s Citizens United ruling.
It’s hard to believe that the justices would be influenced by the possibility of future presidential criticism any more than they are cowed by Obama’s low-key “bullying” before they rule.
Follow Michael McGough on Twitter @MichaelMcGough3