Barack Obama’s comments about the Supreme Court’s supposedly “unprecedented” behavior should it choose to strike down Obamacare may be a political gambit designed to set him at odds with the Court pre-emptively.
Or, it could be an attempt to sway Justice Anthony Kennedy, who has made a habit of switching his positions on key cases just prior to the final bell.
In Planned Parenthood v. Casey (1992), for example, Kennedy originally thought to strike down Roe v. Wade; during the writing process, he reconsidered his position. It didn’t help that Justice O’Connor was in his year “working on him,” according to reports. Kennedy went behind the back of Chief Justice Rehnquist to work with the liberal majority.
That same year in a school prayer case, Kennedy also turned his coat late. Mike Sherman of AP reported about that case: “In the end, Kennedy ended up writing the opinion for a different five-justice majority striking down the graduation prayers. According to several accounts, Kennedy simply changed his mind during the writing process.”
It is not rare for justices to allow outside considerations to cloud their decisionmaking. My constitutional law professor at Harvard Law, Richard Parker, clerked for Justice Potter Stewart; he talked openly about how one justice in particular changed his opinion in Wisconsin v. Yoder (1972) because children were protesting outside his office.
Using the power of the presidency to bully the Supreme Court is out of bounds. But it’s perfectly within pattern for Obama, who did it from the pulpit at the State of the Union Address in 2010. It didn’t work then. The question for Justice Kennedy is whether it will work now.