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Health care law may be terminal

The nine justices of the U.S. Supreme Court already know whether the health care reform act passed by Congress in 2010 can stand in total, in part or not at all as being constitutional.

But America may have gotten a big hint this week when President Barack Obama made a comment that would indicate that the conservative justices on the high court just became a campaign issue for him.

On Monday, the president essentially dared the Supreme Court to find the law, which has a number of popular parts that went into effect first as it is implemented in sections through 2014, to declare his administration’s landmark domestic policy achievement unconstitutional.

“Ultimately,” Obama said at a news conference with the leaders of Canada and Mexico, “I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress. And I’d 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. And I’m pretty confident that this court will recognize that and not take that step.”

When, exactly, this interpretation of the work of the Supreme Court came into being is mystifying. The United States was less than 30 years old when the high court ruled an attempt by the Federalist Party to pack the federal judiciary before President-elect Thomas Jefferson took office was unconstitutional and voided it. It has since been the role of the court to determine whether laws passed by Congress pass muster with the Constitution.

The Supreme Court is appointed for a reason — to keep politics out of it. While it’s been successful at that, no organization is any better than the parts that comprise it, and there’s been no way to keep ideology from finding its way onto the court given the ideological leanings of the presidents who appoint the justices and the senators who confirm them. This could be improved if the Constitution were amended so that justices served single 18-year terms on the court that were staggered, but that’s unlikely to happen in the foreseeable future.

And not every high court appointment has resulted in what the nominating president thought he was getting. A prime example was President Dwight Eisenhower’s appointment of Chief Justice Earl Warren, running mate of Republican presidential candidate Thomas Dewey in the 1948 election. Eisenhower called that appointment “the biggest damned-fool mistake I ever made” as the Warren court went on to become the poster child of liberal judicial activism rallying cry for unhappy conservatives.

The Obama administration has done its best to backtrack on the president’s injudicious comments Monday about the court’s constitutional role, but it would not be far-reaching to surmise that the administration has some intelligence on what the likely ruling will be this summer and Obama was letting the high court know that a ruling against his position on health care reform would make the conservative justices political targets for him to rail against in the fall.

— The Albany Herald Editorial Board