WASHINGTON -- After decades of turning judges into political targets, conservatives who once railed against activism from the bench are plaintively defending the principle of judicial independence.
Presumptive GOP presidential nominee Mitt Romney accused President Barack Obama Thursday of "reckless abandon" and said that Obama's recent speculation that the Court would refrain from taking the extremely unusual step of striking down his health care reform law was "terribly disrespectful."
"The reality is that the Supreme Court's job is in large measure to test whether legislation passed by Congress violates the Constitution or not. Ever since Marbury versus Madison in about 1803 that's been the role of the Supreme Court has played and it has overturned a number of pieces of legislation over the years that it deems to be in violation of the Constitution. That's what it does," Romney said. "How the president thinks that's inappropriate or calls that an activist court is really very puzzling and very troubling and suggests this president will say anything, will attack any institution, will distort the truth with reckless abandon and in this case in a way that I think is terribly disrespectful of one of the branches of our government."
No court has overturned a sitting president's signature piece of legislation in at least 75 years.
"[T]he point I was making is that the Supreme Court is the final say on our Constitution and our laws, and all of us have to respect it, but it's precisely because of that extraordinary power that the court has traditionally exercised significant restraint and deference to our duly elected legislature, our Congress," Obama said Tuesday, seeking to clarify his earlier remarks. "And so the burden is on those who would overturn a law like this."
But Obama's comments have prompted a wave of conservative complaints that he is engaging in judicial intimidation.
Senate Minority Leader Mitch McConnell (R-Ky.) said Obama was engaging in "distasteful politics" and demonstrating "a fundamental lack of respect for our system of checks and balances."
"Judicial activism or restraint is not measured by which side wins but by whether the court correctly applied the law," said Sen. Orrin Hatch (R-Utah), engaging in a bit of intellectual gymnastics in order to redefine activism to exclude the act of striking down health care reform.
Sen. Jim DeMint (R-S.C.) called the president a "bully," while Rep. Lamar Smith (R-Texas), meanwhile, argued that the president "should not be in any shape [or] form threatening the Supreme Court and making statements that are inappropriate or deemed trying to intimidate the Supreme Court."
Republicans have not always been so opposed to intimidating judges.
Former House Speaker Newt Gingrich, who remains a candidate for the GOP presidential nomination, recently declared that as president he would have the Justice Department send a U.S. marshal to force judges to comply with subpoenas. Gingrich has routinely called for the abolishment of the Ninth Circuit Court of Appeals as well.
Former House Majority Leader Tom DeLay (R-Texas) threatened the courts for failing to respond properly to the Terry Schiavo case, going so far as to call for a panel to review its handling.
"[T]he time will come for the men responsible for this to answer for their behavior," he said at the time, adding that he wanted to "look at an arrogant, out-of-control, unaccountable judiciary that thumbed their nose at Congress and the president."
Sen. John Cornyn (R-Texas), meanwhile, once attributed a series of instances of courthouse violence to public anger with judges.
"I don't know if there is a cause-and-effect connection, but we have seen some recent episodes of courthouse violence in this country," he said. "And I wonder whether there may be some connection between the perception in some quarters, on some occasions, where judges are making political decisions yet are unaccountable to the public, that it builds up and builds up and builds up to the point where some people engage in, engage in violence. Certainly without any justification, but a concern that I have."
Yet now that the court may overturn health care reform, Republicans suggest backing it no matter what it decides. "Apparently the president doesn't read the Constitution as some of us do," said Sen. John McCain (R-Ariz.). "I thought that their decision on Citizens United … was terrible, outrageous. I'm still outraged. But I certainly never challenged their decision to do it."
The wrangling between the judicial and executive branches over the Affordable Care Act took a turn for the bizarre on Tuesday, as an arch-conservative appellate court judge demanded that an Obama administration lawyer clarify whether the president believed in the concept of judicial review.
The incident was a remarkable instance of politics entering the courtroom. While hearing a challenge to the Affordable Care Act, Fifth Circuit Appeals Court Judge Jerry Smith interrupted a DOJ attorney to ask whether it was the department's belief that the Supreme Court could declare a law unconstitutional. The attorney answered yes, though her reply left Smith unsatisfied, as he reportedly responded that it wasn't evident to him that the president respected judicial independence.
Smith was responding to remarks the president made during a Monday press conference, in which he said he was confident that the Supreme Court would uphold the Affordable Care Act and argued that it would be a bout of judicial activism not to. The president addressed the topic again on Tuesday. Speaking at an Associated Press luncheon, he reiterated that it would be unprecedented for the court to rule that Congress didn't have the authority to compel individuals to buy health insurance coverage under the commerce clause. But the president also went out of his way to stress that he respected the court's authority to call constitutional balls and strikes.
Attorney General Eric Holder on Thursday submitted a letter to the federal appeals court affirming that the "power of the courts to review the constitutionality of legislation is beyond dispute," but he reiterated the president's statement that courts should show strong deference to Congress' commerce-based regulations.
"While duly recognizing the courts' authority to engage in judicial review, the Executive Branch has often urged courts to respect the legislative judgments of Congress," Holder wrote. Citing the conservative appeals judges who upheld the Affordable Care Act's individual mandate, Holder concluded that principles of judicial restraint "are fully applicable when Congress legislates in the commercial sphere. The courts accord particular deference when evaluating the appropriateness of the means Congress has chosen to exercise its enumerated powers, including the Commerce Clause, to accomplish constitutional ends."
Mike Sacks contributed reporting
Below, a slideshow of Republican attacks on Obama's recent remarks on the Supreme Court and health care reform.