There was much ado about not much when President Obama declared on April 2 that it would be "unprecedented, extraordinary" for the U.S. Supreme Court to overturn the health care reform law that passed both houses of Congress with substantial majorities.
Hasn't he ever heard of Marbury v. Madison, Chief Justice John Marshall's famous decision announcing the power of the Supreme Court to review acts of Congress (but not declaring anything unconstitutional in doing so)? One court went so far as to demand that the Justice Department submit a three-page memorandum explaining the president's view.
Obama was a senior lecturer in constitutional law. Trust me, he's heard of Marbury v. Madison. And no one would have to stay up late to explain and justify his statement.
Of course the Supreme Court has the power to declare acts of Congress unconstitutional. But even recognizing that "federalism" is one of those areas (sort of like election law) in which results tend to come before principles on both sides, there are legitimate differences between cases in which the court exercises its power to protect individual rights, and when they do so because Congress has exceeded its power under the Commerce Clause and invaded states rights.
In a famous footnote to the 1938 opinion in Carolene Products (upholding federal regulation of the milk market), the court said a stricter standard of scrutiny should be applied to legislation targeting the rights of "discrete and insular minorities" who lack the protection of the political process. In such cases, the anti-majoritarian court serves to protect minorities against the tyranny of the majority. That is what is at issue, at least from the Obama administration's point of view, in the argument that the Defense of Marriage Act is unconstitutional.
Of course, judicial restraint is one of those concepts that both sides invoke when they don't want the court to act. This time, liberals are for judicial restraint; in the case of DOMA, it's the conservatives who are urging the courts to respect the will of Congress. Even so, as a matter of constitutional theory, they aren't equivalent. Carolene Products supports the Obama administration on both points.
Whether or not you think it's appropriate for the president to comment on pending cases (certainly his Justice Department does a lot more than comment; it advocates, and said much the same thing in its briefs), every member of the Supreme Court has to be aware that a decision striking down the health care law would be a political hot potato in an election year. They don't need the president to remind them of what happened when the court stood in the way of popular legislation in the 1930s.
Health care reform may not be as popular as the minimum wage and milk regulation, but a decision striking down the law would almost certainly lead to commercials with people suffering from cancer unable to buy health insurance and young people thrown off their parents' policies -- because of the Republican court. If the law goes down, it will go down on strict party lines -- because all those appointed by a Republican president voted against it. Sure does look like politics.
Striking down the law would thrust the justices and the court into the political process in a way they haven't been since Bush v. Gore. And that is one of the reasons I'm still predicting 6-3 to uphold the law.