Obama's Base Play

By JAMES TARANTO

"A Federal Appeals Court has asked a [Justice Department] lawyer to write 'Madison v. Marbury' on the blackboard one hundred times," quips blogger Tom Maguire. That's only a slight exaggeration. CBS's Jan Crawford tells what happened yesterday at a hearing of the Fifth U.S. Circuit Court of Appeals:

The [three-judge] panel is hearing a separate challenge to the health care law by physician-owned hospitals. The issue arose when a lawyer for the Justice Department began arguing before the judges. Appeals Court Judge Jerry Smith immediately interrupted, asking if DOJ agreed that the judiciary could strike down an unconstitutional law.

The DOJ lawyer, Dana Lydia Kaersvang, answered yes--and mentioned Marbury v. Madison, the landmark case that firmly established the principle of judicial review more than 200 years ago, according to the lawyer in the courtroom.

Smith then became "very stern," the source said, suggesting it wasn't clear whether the president believes such a right exists. The other two judges on the panel, Emilio Garza and Leslie Southwick--both Republican appointees--remained silent, the source said.

Smith, a Reagan appointee, went on to say that comments from the president and others in the Executive Branch indicate they believe judges don't have the power to review laws and strike those that are unconstitutional, specifically referencing Mr. Obama's comments [Monday] about judges being an "unelected group of people."

As Texas Lawyer reports, Judge Smith ordered Kaersvang to produce a letter of "at least three pages single-spaced, no less," stating "the position of the attorney general and the Department of Justice" on the president's statements.

The president, as we noted yesterday, subsequently qualified his position to acknowledge the existence of judicial review. Lots of people have been scratching their heads trying to figure out what Obama thinks he's doing here. His attacks on the Supreme Court have been so ignorant and undignified as to seem a bit kooky.

One theory is that he's trying to intimidate the justices into deciding the case his way. But if that's his aim, it would be odd to wait until after they've heard the case--and, it is believed, after they've privately voted on it--to begin the campaign. Moreover, while we'd say a politician's trash talk is unlikely to have any effect on the justices at all, the odds that it would influence them in his favor are surely minuscule. Judges jealously guard their independence, as the Fifth Circuit demonstrated yesterday. They're right to do so.

Although he claims to be confident that the court will uphold ObamaCare, a president who was truly confident would keep quiet about it. Actually, a president with the merest respect for the structure of American government--and for his own office--would keep quiet about it, whether confident or not.

The best explanation is that he is preparing politically for a judicial defeat. But that begs the question of why he is taking the particular, and highly unusual, approach of waging rhetorical war on the Supreme Court. Perhaps there's a clue to that question in a recent post by the New York Times's Nate Silver.

Silver seeks to counter the counterintuitive argument that a ruling against ObamaCare would help Obama's re-election chances:

The theory seems to rest on the notion that Mr. Obama could use the health care bill to rally his base, either by railing against the Supreme Court or by trying to advance a new plan.

There are a few basic problems with it:

1. Mr. Obama does not face a major problem with his base, but his standing is tenuous with swing voters.

2. Among swing voters, the health care bill is not very popular.

3. The Supreme Court declaring the health care bill unconstitutional will not make it more popular among swing voters.

We agree with points 2 and 3, and also with Silver's conclusion that an adverse ruling would be of no help to Obama politically. (It would be a crushing ideological defeat to boot.)

But we take issue with Silver's first half-point, that Obama "does not face a major problem with his base." To be sure, Silver has numbers to back up this assertion: "Obama's approval ratings are now 84 percent with Democrats and 87 percent with liberal Democrats, according to the latest Gallup poll. Those numbers are fairly normal by historic standards."

Fair enough. The base is happy with Obama now. But how will they feel three months from now if the court has struck down the president's signature "achievement"?

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Getty Images

They're mad. Obama doesn't want them mad at him.

We can't look ahead in time to see, of course, but we can look back. Remember last summer, or "The Left's Summer of Discontent," as we called it in The Wall Street Journal? Because of Obama's rigid negotiating position, Republicans had bested him in the debt-ceiling dispute with Congress, and the left was furious at the president, demanding that he "fight" harder and vilify his domestic enemies. He complied--though with no legislative results--and that succeeded in redirecting the Angry Left's anger.

As we noted in our August essay, "Everyone loves a winner, and progressives are angry and disconsolate with Mr. Obama because they increasingly see him as a loser." If the Supreme Court strikes down ObamaCare, Obama will be a loser again. If he shows what normal people regard as due deference to a coequal branch of government, the Angry Left will see him as a weak loser and may turn their anger against him.

And think of how furious they'll be if the entire law--which is really the only major progressive "accomplishment" of Obama's presidency--is struck down because the individual mandate is unconstitutional. The left doesn't even like the individual mandate. They had to swallow an idea that came from the Heritage Foundation and that enriches the hated insurance companies, as the price for "health care reform," and now they're not even getting that. Such indignity!

If this theory is right, then Obama is attacking the Supreme Court in order to deflect the rage of his own followers. He has a problem with his base, all right, and he wants to turn it into someone else's problem.