Obama narrowed and clarified his original statement on Tuesday, under questioning at The Associated Press annual meeting. His spokesman spent the next two days explaining and defending both statements on both legal and political grounds.
As a former law professor, "the president understands judicial precedent. He has a little experience with it, and the importance of judicial review," White House press secretary Jay Carney said Thursday.
University of Texas Law School professor and Supreme Court scholar Lucas Powe said Obama's original statement suggests he probably knows the law is in trouble and is seeking political high ground.
"My instinct is that he was laying predicate for a campaign statement," Powe said. "People said he was threatening the court. You can't threaten the Supreme Court."
It wasn't the first time Obama criticized the court. He blasted the court's then-fresh campaign finance ruling in his 2010 State of the Union address.
"The Supreme Court reversed a century of law to open the floodgates for special interests, including foreign corporations, to spend without limit in our elections," Obama said then.
That earned an on-the-spot rebuttal from conservative Justice Samuel Alito. Alito, sitting in the front row, was seen to mouth, "Not true."
Democrats and many constitutional scholars were also appalled by the court's actions in 2000, when it took on the disputed presidential election and effectively called the race for Republican George W. Bush. Justice John Paul Stevens, a lifelong Republican appointed by President Gerald Ford, warned in a bitter dissent that the court risked undermining its own authority by appearing nakedly political.
The current back and forth turns a standard Republican campaign rallying cry on its head. Over the past three decades, Republicans have increasingly criticized judges as liberal and unaccountable, charging "judicial activism" has infected the court system.
The Supreme Court was a regular target, even during the tenure of conservative Chief Justice William H. Rehnquist.
The court has had a conservative majority for more than a decade. But while the court was far from a rubber stamp for Bush, it took the election of Democrat Obama to draw a sharp contrast between the court and the executive.
Both Democrats and Republicans are being disingenuous by using the court as a political instrument, said Orin Kerr, a prominent conservative Supreme Court expert.
"Judicial activism is a two-way street, and when the politics switch most people reverse arguments," said Kerr, a professor at George Washington University Law School. "Liberals are sounding like conservatives and conservatives are sounding like liberals."
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