Sen. Sheldon Whitehouse (D-R.I.) is among Democrats who have defended… (Charles Dharapak, Associated…)
WASHINGTON — Attorney Gen. Eric H. Holder Jr. told a federal appeals court that President Obama respects the Supreme Court's power to rule on the constitutionality of the nation's laws, a statement that a week ago would have seemed obvious but on Thursday appeared aimed at ending days of White House stumbling over the tricky politics of the high court.
In a three-page letter, Holder defended Obama's recent comments about the court and its impending decision on the president's healthcare law as "fully consistent" with established judicial precedent. Obama's remarks had roiled Judge Jerry E. Smith of the 5th U.S. Circuit Court of Appeals in New Orleans. Smith made the unusual demand for an explanation from government lawyers in his courtroom after saying that the president appeared to be questioning whether courts have the power to invalidate acts of Congress.
The back and forth underscored the difficulty the president — along with his party — has had when it comes to using the court and its decisions for political advantage. While Republicans have long motivated their base by labeling the federal courts as bastions of liberalism and "activist judges," Democrats have been less comfortable on such turf.
Until recently, that is. Spurred by the Citizens United decision, which allowed unlimited corporate spending on political campaigns, and the perception that the court majority has become more openly aligned with the Republican Party, many Democrats are pushing to take on the court. That prospect increased greatly last week, when oral arguments about the healthcare law suggested the court may be poised to strike down the president's signature legislation.
The White House and the Obama campaign have been mum on how the president would handle the political fallout of a ruling against his healthcare law. But Obama seemed to be primed for confrontation in his first remarks on the matter this week in which he declared such a move would be "unprecedented" and noted that the justices were "unelected."
The statement prompted Smith's demand and was widely mocked by critics and some legal experts as a misunderstanding of well-established judicial precedent. The court's power to strike down laws passed by Congress dates back to 1803.
Obama's comments were all the more surprising considering that he is a former constitutional law professor. Even Laurence Tribe, one of his law professors at Harvard, told the Wall Street Journal that the president misspoke
Obama sought Tuesday to clarify the remarks. It had been decades since the court had struck down an economic law based on the commerce clause, the issue at play in the healthcare case, he said.
Holder further affirmed the position on Thursday, writing, "The power of the courts to review the constitutionality of legislation is beyond dispute." White House spokesman Jay Carney said the president's comments were merely an "unremarkable observation" about court precedent.
But for now, the president's comments on the court will be closely watched for signs of how the White House is laying the groundwork for a potentially bruising ruling in an election year. For months, Democratic fundraising, stump speeches and ads have tried to make Citizens United a household name as an example of the court overstepping its bounds.
Some Democrats came to the president's defense this week.
"I think that there comes a point when you have to be able to tell the truth about a Supreme Court that is activist and that is threatening to become even more activist," Sen. Sheldon Whitehouse (D-R.I.) said Thursday. "The Republicans themselves have spent a generation decrying Supreme Court activism, but suddenly when President Obama points out that this would be activist, there's something wrong with saying that? It doesn't seem very logical."
Obama has shown he is willing to confront the court. The president made news and raised the ire of some members, including Chief Justice John G. Roberts Jr., when he condemned the Citizens United ruling in his 2010 State of the Union address with some of the justices in attendance. Some viewed the move as an ill-advised attempt to draw the court, at times viewed as a bastion of independence, into the political fray.
But it is not at all clear whether an election-year assault on the court over the healthcare law would draw more voters in or repel them. For decades, polling has shown that the voters most attuned to the court's rulings and with the strongest opinions about its members tend to be solid partisans on either side.
Staff writer Richard A. Serrano of the Washington bureau contributed to this report.