So, of course, the President's statement that it would be unprecedented for the Supreme Court to invalidate a law that was passed by a "strong" majority in Congress is wrong and, for a law professor, seems breathtakingly stupid. There are legal academics on the left who have come to be opposed to judicial review but no one would say it is unprecedented. Law students learn in about the first week of Constitutional Law that it is very precedented - that it is, in fact, one of the cornerstones of our constitutional jurisprudence. Ask any lawyer to tell you about Marbury v. Madison. It's one of the few first year cases, he or she will remember by name.
But President Obama is not breathtakingly stupid and we are reminded - constantly - that he taught constitutional law as an adjunct professor of law at Chicago. He knows that what he said is wrong.
The current White House spin is that he meant to say - in fact did say - something different than the meaning of the words he chose. I don't believe that. Indeed, he could have said that it would be rare (it wouldn't be unprecedented) for the Court to invalidate a Congressional enactment predicated on the Commerce power.
But a nuanced statement like that would not have served his purpose. It would have invited an argument about legal technicalities and not about the legitimacy of the Court. It would have been dismissed by most people as an argument between experts and that would not do.
Obama may be trying to influence the Court. It would be a big thing to strike down Obamacare - not because it would be unprecedented or even unpopular, but because it place the Court and President in conflict on a major national issue. That happens but it is always uncomfortable.
In making his statement, the President signalled that he intended to exacerbate such a conflict. He intends to go after the Court and make it an issue in his reelection campaign. While some liberal commentators, while forced to admit that the statement itself was nonsense, have said that it is not much of an attack, it is also the case that the Court has not yet ruled. This is a signal of what is to come and was intended to be read as a signal of what it to come.
So I have some sympathy for Judge Jerry Smith who, in the course of proceedings on a different challenge to the health care law, asked the DOJ to clarify its position on judicial review. I understand why he felt compelled to do it.
But, in the end, I think he ought not to have done it. The President of the United States was engaged in silly political posturing for which he has been, and richly deserves to be, slapped down.
I think it would be better for federal judges to stick to knitting and ignore the antics of politicians - even the President of the United States. What he said was wrong. We all know it's wrong. Let's attend to the law as it is.