GWEN IFILL: Finally tonight, As the Affordable Health Care Act hangs in the balance, law, politics and the Supreme Court are on a collision course.
Jeffrey Brown explains.
PROTESTERS: We love Obamacare!
JEFFREY BROWN: Protests on all sides swirled last week, as the U.S. Supreme Court found itself the center of national attention during three days of arguments on the health care reform law.
The sessions fueled speculation that the justices might strike down some or all of the statute. And on Monday, after meeting with the leaders of Canada and Mexico, President Obama warned the court would be overreaching if it does that.
PRESIDENT BARACK OBAMA: And I would just remind conservative commentators that for years what we've heard is the biggest problem on the bench was judicial activism or a lack of judicial restraint, that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example.
JEFFREY BROWN: A day later, addressing newspaper editors, the president returned to the subject.
BARACK OBAMA: The 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. And so the burden is on those who would overturn a law like this.
JEFFREY BROWN: But Republicans like presidential hopeful Mitt Romney suggested the president had gone too far in directly challenging the nation's highest court.
MITT ROMNEY (R): It's really quite a curious turn of events for him to start complaining about an activist court. Look, the whole idea of a court that is not an activist court is one that follows the Constitution. An activist court is one that departs from the Constitution.
In this case, the court is doing the job they were put in place to do, which is they will opine as to whether Obamacare violates the Constitution.
JEFFREY BROWN: This tug-of-war between the branches of government isn't new. In the 1930s, a conservative-dominated court threw out a number of President Franklin Roosevelt's New Deal programs.
Roosevelt answered with a plan to replace aging justices, the so-called court-packing scheme. In a 1937 radio chat, he explained his purpose.
PRESIDENT FRANKLIN ROOSEVELT: To bring to the decision of social and economic problems younger men who have had personal experience and contact with modern facts and circumstances under which average men have to live and work. This plan will save our national Constitution from hardening of the judicial arteries.
JEFFREY BROWN: Some 20 years later, Chief Justice Earl Warren and a liberal majority ordered desegregated schools and ended school prayer. That sparked a wave of "Impeach Earl Warren" billboards, especially in the South.
In 2000, the court was again in the spotlight, deciding the presidential election in favor of Republican George W. Bush.
And in his first State of the Union address, President Obama chastised the court's decision allowing unlimited corporate spending in national elections.
BARACK OBAMA: With all due deference to separation of powers, last week, the Supreme Court reversed a century of law that I believe will open the floodgates for special interests, including foreign corporations, to spend without limit in our elections.
JEFFREY BROWN: As the president spoke, Justice Samuel Alito appeared to mouth the words "Not true."
The voices of dissent from protesters and perhaps the president may well be louder this summer, when the Supreme Court rules in the health care case.
And we join some of these issues now with Louis Michael Seidman, author of the book "On Constitutional Disobedience." He's a former law clerk to Supreme Court Justice Thurgood Marshall. And Randy Barnett, author of "Restoring the Lost Constitution," he represented the National Federation of Independent Businesses in its challenge to the health care law. And they're both professors at Georgetown Law School.
Welcome to you.
LOUIS MICHAEL SEIDMAN, professor, Georgetown University Law Center: Thank you.
JEFFREY BROWN: Randy Barnett, I will start with you.
What struck you in hearing the president earlier this week? How does it fit into some of the past examples we have heard?
RANDY BARNETT, professor, Georgetown University Law Center: Well, I think what the president said on Monday was just flat-out wrong.
And as evidence of that, I will cite what he said on Tuesday, in which he took it back. On Tuesday, he said something that comes closer to being accurate and it was a clear admission that what he had said on Monday was a grave distortion of the role of the judiciary relative to the presidency or the Congress.
And so -- but I think this is part of a broader problem of the politicization of whatever's going to come out of the Supreme Court in June.
JEFFREY BROWN: Michael Seidman, wrong on Monday, wrong to speak out?
LOUIS MICHAEL SEIDMAN: I thought he was right on Monday, he was right on Tuesday. What he said seems to me to be completely unexceptional.
JEFFREY BROWN: Unexceptional given past. . .
LOUIS MICHAEL SEIDMAN: Yes.
As long as there has been a Supreme Court, there have been political attacks on the court, some of our most revered presidents, as your setup piece mentioned. In addition to Roosevelt, Thomas Jefferson ran against the court in 1800. Abraham Lincoln, his entire platform in 1860 was against the court and what the court had done.
So there's nothing unusual about this. And the president he didn't -- he didn't threaten anybody. He didn't try to pressure the court. He's entitled to his opinion about the constitutionality of the health care bill and he -- and it may not be tactically wise for him to say what he said, but he certainly has a right to say it.
JEFFREY BROWN: Why do you see this as different from these past examples?
RANDY BARNETT: Well, first of all, on Monday, what he said is that it's somehow improper for a group of unelected people, to use his words, to strike down a law that has been passed by a Congress. That's literally what he said.
And, as we all know, since Marbury vs. Madison, that's perfectly okay. On Tuesday, he refined what he said on Monday, and he was more clear about the basis on which he was criticizing it. But, on the other hand, with these historical examples -- maybe Mike knows -- I don't -- I don't know that any of these were done while a case was under submission to the court while it was deliberating.
JEFFREY BROWN: You mean before it was decided?
RANDY BARNETT: Before it was decided.
I think Roosevelt was quite vocal in criticizing decisions of the court, but not criticizing deliberations of the court. I think that's something new and something different.
LOUIS MICHAEL SEIDMAN: Well, first of all, Roosevelt did criticize -- there were New Deal measures that were before the court at the time Roosevelt was criticizing in the court.
Secondly, Randy Barnett is my good friend, but he actually misquoted the president. I don't think he said it was improper. He said it was unprecedented. And there are almost no precedents that I can think of, of a Supreme Court striking down a -- the major domestic legislative accomplishment of a sitting president.
Even the New Deal confrontation involved relatively peripheral New Deal measures, or, in the case of the National Industrial Recovery Act, a measure that was about to expire. Rightly or wrongly, I think the president had it about -- whether the court is right or wrong, the president had it about right, that this would be unprecedented or close to unprecedented.
JEFFREY BROWN: Now, you brought up the broader politicization. The president certainly has been criticized by some -- and you just made the argument. The court has been taking a lot of hits for being overly political.
I will just cite one of many. Maureen Dowd in today's New York Times column. The court has -- quote -- "squandered even a semi-illusion that it is the unbiased, honest guardian of the Constitution." She said the conservative majority's reasoning seemed -- quote -- "shaped more by a political handbook than a legal brief."
RANDY BARNETT: And what is she responding to? She's responding to questions asked during an oral argument.
That's the Supreme Court's reasoning she's talking about. She's not waiting for the Supreme Court to issue a ruling, write an opinion, and read the opinion to see if the opinion makes sense as compared to the legal arguments of the opposition. That's exactly what we're seeing.
I have an article from The Daily Beast here that says impeach the Supreme Court justices if they overturn the health care law, regardless of what they say, regardless of the basis on which they rule. That is wrong.
JEFFREY BROWN: Are they not -- well, go ahead.
LOUIS MICHAEL SEIDMAN: Well, look, I'm not in favor of name-calling. I think there's way too much of that, and people ought to be civil when they talk about this.
At the same time, I think you just have to be extraordinarily naive to think that politics has nothing to do with what the court is -- with the court's deliberations in this case. We're asked to believe that it's just a coincidence that all of the questioning hostile to the case came from judges, justices appointed by Republican presidents, and all of the questioning favorable to the law came from justices who were appointed by Democratic presidents.
I just can't -- I'm not quite able to believe that that's just a coincidence.
JEFFREY BROWN: Well, I mean, this goes to a broader question. And I think a lot of people still wonder about this. To what extent is it fair to think of the court -- you can start this, Randy Barnett -- is it fair to think of the court as a political institution in some sense?
RANDY BARNETT: Well, they're appointed by a politically elected president and they're confirmed by a politically elected Senate. So they do come from different perspectives based on the views of the president who appointed them.
But I will say that if there's one thing that would be political for this court to do, it would be to uphold this law because it is the signature piece of legislation by the president. If that was the reason why those conservatives on the court who think it's unconstitutional change their vote, in order to uphold the law, that would be a political decision. It would not be a legal one.
JEFFREY BROWN: You're shaking your head. You think it is inevitably in the political arena?
LOUIS MICHAEL SEIDMAN: Of course it is.
First of all, if people are skeptical about the non-political nature of the court, they have nobody to blame but themselves. These are the people who gave us Bush v. Gore, where a majority of the court disregarded all of the theoretical and doctrinal positions that they're normally associated with in order to hand the presidency to George Bush.
Secondly, we have just many, many examples throughout our history of courts that have been influenced in one way or another by electoral politics. We know that now because records are available, the conference notes were available.
It would be really surprising if this court, uniquely among courts in American history, was completely apolitical and just, in a disinterested way, following the law.
RANDY BARNETT: So there's nothing to complain about then. Since all courts are political, they're political when they rule for you; they're political when they rule against you. And, therefore, it's OK for them to be political.
LOUIS MICHAEL SEIDMAN: I'm not -- I'm not complaining.
I do think it's inevitable that when the court interprets very broad language in the Constitution, where there's not a clear meaning to it, that political biases are going to affect the interpretation. And that's true of liberal justices. It's true of conservative justices. We ought to grow up and understand that that's what's going on.
JEFFREY BROWN: But part of your other point is that this is now part of the political narrative of -- we're in a campaign season, right?
RANDY BARNETT: Right.
I think what's happening is, is a number of people, primarily on the left, are trying to create a political narrative that they can use if they get an adverse ruling in this case. And I guess they must think that they're going to, or they wouldn't be starting today.
JEFFREY BROWN: And briefly your. . .
LOUIS MICHAEL SEIDMAN: Of course Randy thinks people on the right haven't used this as a political issue at all.
RANDY BARNETT: I totally don't think that, Mike.
LOUIS MICHAEL SEIDMAN: Good.
LOUIS MICHAEL SEIDMAN: We're in agreement about Washington.
JEFFREY BROWN: All right, on final -- on that agreement, Randy Barnett, Michael Seidman, thank you both very much.
LOUIS MICHAEL SEIDMAN: Thanks for having me.