Obama’s Supreme Court comments were unprecedented, in a sense, but so is the scenario he’s warning against

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The Roberts Court, with Obama appointees. ()
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This week, after a surprisingly combative oral argument over the fate of his signature health care law, President Obama warned the "unelected" justices of the Supreme Court that it would be an "an unprecedented and extraordinary" act of "judicial activism" if they invalidated the individual mandate.

Republicans were outraged at a president seeming to "intimidate" the court, saying what was "unprecedented" was for a president to make such comments.

Partisan outrage isn't always a great barometer of historical veracity, but the president's critics were largely right about what the president was doing, if not about why he was doing it.

According to Lucas A. Powe Jr., a constitutional law professor and court historian at the University of Texas, no president has publicly warned the court about a case in progress in the way Obama did.

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"Never," Powe said. "Never while a case was sub judice." 

Powe clerked for Justice William O. Douglas in the early 1970s, and recently wrote a book called The Supreme Court and the American Elite, which argues that the court mostly conforms to the opinions of the political elite at any given time. He wrote a previous book on the politics surrounding the Warren Court.

"I can think of no instance where a president came out with a public pronouncement about how the court should decide a case after it's argued," he said. "And normally they don't have to because the president's brief tells you what the president thinks."

"The closest you can get is Roosevelt," he said.

But even that comparison wasn't all that close. In 1934 and early in 1935, Roosevelt grudgingly praised decisions that struck down fundamental parts of his New Deal, until May 27, 1935, when the court unanimously ruled against Roosevelt in three key cases, including Schechter Poultry Company v. United States, which invalidated the entire National Industrial Recovery Act.

"After Black Monday, he savaged Schecter Poultry," Powe said. "And then in 1936 he didn't say a word. So Roosevelt's comments, the only ones that were hostile prior to the court-packing plan, that were public, were after the decisions on Black Monday, specifically Schecter Poultry."

After his silence in 1936, Roosevelt famously proposed a court-packing plan that would have added one justice to the bench for each elderly member, which was then followed by a string of more favorable decisions.

Since then, courts have rarely disagreed with the president on seminal pieces of legislation.

Lyndon Johnson's Great Society program was looked on rather favorably by the Warren Court, and Richard Nixon mostly used the liberal court as a foil.

"Nixon cared about toning down criminal procedure decisions, which the Republicans did. And he cared about, 'Don't bring school busing fully into the north,' but he basically said: 'Make it a judicial issue so that I can claim to white ethnics that I'm doing something.'"

Jimmy Carter wasn't there long enough for a comparable situation to arise, and Ronald Reagan had the luxury of inheriting a court that had a majority of justices appointed by his Republican predecessors.

"There was never any battle between federal legislation and the court," he said. "The battles of the '80s were about abortion, affirmative action, gay rights in Bowers v. Hardwick, and religion. They were social-issue battles."

Under Bill Clinton, the Republican-leaning court overruled about 30 statutes that had been passed by a Democratic Congress, but most of them were relatively minor. Clinton's signature legislative achievements were right-leaning, like welfare-to-work and the Defense of Marriage Act, and didn't invite any exacting scrutiny from a right-leaning court.

George W. Bush, who was installed by a court in what many consider the high-water mark of judicial intervention, didn't have much to complain about it during his eight years.

"Obamacare I think ranks with the top half-dozen statutes passed in the last century and none of them have been struck down," Powe said, with one possible qualification for hindsight."The National Industrial Recovery Act we know was a bust, so we don't think of it as such a great act, but FDR did."

But Powe didn't think Obama was exerting pressure on the court with his comments.

"I don't think it's possible to do so," he said. "I think what he was doing was laying the predicate for a possible campaign argument. I think his discussion was both to fuel the Democratic base and to illustrate the inconsistency of the Republican position on the court."

Powe said most of the discussion surrounding the court, including the president's comments were unlikely to influence it, with one notable exception.

"I mean, the New York Times might be able to pressure Anthony Kennedy a bit, by praising him for when he's behaving like a Democrat and questioning his behavior when he behaves like a Republican, because Kennedy is very, very much attuned to how he plays in the media," he said. "But I don't think John Roberts would be pressured. And nobody else on the court matters."