· By DANIEL HENNINGER
‘I am confident,” announced the president of the United States, “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 so it was on Monday that Barack Obama, anticipating a loss before the Supreme Court, added the third branch of government to the list of villains he will run against in his re-election campaign.
Many are saying the president should know Marbury v. Madison. He does. It doesn’t matter. If something gets in his way, Barack Obama hammers it—whether courts or Congress. The left likes that. It remains to find out if the rest of the country wants the judicial and legislative branches subordinated to a national leader.
Many schools of thought have emerged on the subject of why Barack Obama does some of the things he does, such as the job-killing Keystone XL pipeline decision or vilifying the Supreme Court justices seated before him at his State of the Union speech or inviting the GOP leadership to his speech on the deficit so he could insult them, and then hit them both again this week. Calculation? Intimidation? One school holds he acts out of personal belief (the school I subscribe to). Or that he polls it before he says it (also plausible).
It appears to be unprecedented, however, for a U.S. president to have attacked the Supreme Court before it handed down its decision. Some think Mr. Obama and his progressive infantry are trying to intimidate the Justices, specifically Justice Anthony Kennedy. But most legal commentary has said the president’s attack is likely to anger the justices, perhaps including some of the court’s liberals. Mr. Obama’s notion of judicial review diminishes all the members of any court, not just its conservatives. It doesn’t help the always difficult struggle for an independent judiciary in other countries if an American president is issuing Venezuela-like statements on U.S. courts.
Another possible explanation occurs. It’s in one of the grandest moments in “The Wizard of Oz,” when the Wizard, fumbling at the controls inside his throne room, shouts to Dorothy and the others: “Pay no attention to that man behind the curtain.” Barack Obama, a wizard of another kind, has been trying with fulminations and denunciations to keep anyone from attempting what a law professor might call discovery of what the president actually has done in the past three years. We already know, for instance, that the stimulus’s $825 billion went up the chimney. What else?