Obama's Supreme Court Smackdown Explained

Bloomberg/Getty Images
Bloomberg/Getty Images

Considering all the outrage during the past week over President Barack Obama's somewhat tart "pre-buttal" to the Supreme Court on the fate of the Affordable Care Act, you'd almost think the president had stepped to the mic last Monday and told the justices to take their forthcoming ruling on the individual mandate and "shove it."


And actually, he sort of did.

It wasn't nearly that dramatic, but the president did go out of his way to give them — and opponents of the mandate — something to ponder in advance of the court's ruling, arguing that it would be an "unprecedented" move that "an unelected group of people would somehow overturn a duly constituted and passed law."

He was wrong, of course — the court does that all the time — and pundits cried foul, with the Wall Street Journal's James Taranto tweeting, "Obama is stunningly ignorant when it comes to constitutional law," and the Washington Post's Ruth Marcus writing that she was "stopped cold" by the president's "assault" on the court.

Senate Majority Leader Mitch McConnell warned Obama to "back off," and even the president's Harvard mentor Laurence Tribe weighed in Wednesday, saying that his former student "obviously misspoke."

But he didn't misspeak — he talked back. Obama knows as well as anyone that the Supremes are going to rule as they see fit. But he's decided to sandbag them, so that if they overturn the mandate — and then universal health coverage crumbles around it — it's on them, not him.

Why shouldn't he? "Mr. Nice Guy" hasn't worked, so he's going with "No More Mr. Nice Guy." As Sarah Palin might say, he's "going rogue" and the only lesson here is that the president can throw a punch as well as he can take one.


Conservatives are mad that Obama played the "activist judges" card on this one, but second-guessing courts is a tactic that they invented. If they don't like it, they should have thought twice before deploying it to oppose everything from abortion to gay marriage.

Obama's critics may prove right that the mandate doesn't pass constitutional muster — and he might secretly think so, too — but that doesn't mean he can't spot a classic bait-and-switch when he sees one. In 2008, he criticized the individual mandate proposed by then-Sen. Hillary Clinton, saying that "If a mandate was the solution, we could try that to solve homelessness by mandating everybody buy a house." He never called it unconstitutional, but this wasn't originally his idea, and now he's stuck defending it.


The mandate was a Republican plan — that they orphaned as soon as Obama endorsed it. So now he's putting the "Pottery Barn" rule into effect: if the Supreme Court justices break the Affordable Care Act, then as far as the president's concerned, they've bought it.

No matter what Obama does — burying Muammar Qaddafi, resurrecting Chevrolet, cutting payroll taxes or taking Mitt Romney's Massachusetts health plan nationwide — he catches flak for it. At this point he probably figures that if he's going to get hit either way, he might as well come out swinging.


And in terms of playing nice with the other branches of government, Team Obama is signaling that three years in, they've caught on to how rough the game is, and that if they have to, that's how they'll play it, too. On Tuesday, an indignant Judge Jerry Smith of the 5th U.S. Circuit fired off a demand that Obama explain his comments. On Thursday, Attorney General Eric Holder shot back a response, defending the executive's right to bark at the judiciary and concluding bluntly that "the president's remarks were fully consistent" with past precedent.

End of discussion.

By Friday, Professor Tribe had gone from reprimanding Obama to ripping Judge Smith for his "thinly concealed insult to the president." And though there was a time — before "Where's the birth certificate?" and "You lie!" — when Obama might have smoothed the whole thing over with a "beer summit," that time has come and gone. These days, the president isn't so quick to pull his punches.


He's going rogue — and folks should probably get used to it.

David Swerdlick is a contributing editor to The Root. Follow him on Twitter.

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David Swerdlick is an associate editor at The Root. Follow him on Twitter