Not even a full year into President Obama's first term, Politico observed that he had reached the point of caricature in using the term "unprecedented" to describe basically anything that occurs during his presidency. By now, Americans have learned to shrug off his use of this rhetorical tick.
And yesterday it happened again when the president challenged the Supreme Court not to strike down Obamacare's individual mandate, a judicial act that would "be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress."
As Jeffrey Anderson and others have noted, this is just silly. There is nothing "unprecedented" about the Supreme Court striking down federal laws—even federal laws passed with broad congressional support. The Court has struck down scores of federal laws, and often rightly so.
But I would like to note one particular statute that survived judicial review: the Partial-Birth Abortion Ban Act of 2003. More specifically, I note then-senator Obama's reaction when the Supreme Court affirmed that law, in Carhart v. Gonzales. In a 2007 speech to Planned Parenthood, he criticized the Court for not striking down that federal law, and called on the Court to be more aggressive in striking down federal laws:
I think the Constitution can be interpreted in so many ways. And one way is a cramped and narrow way in which the Constitution and the courts essentially become the rubber stamps of the powerful in society. And then there’s another vision of the court that says that the courts are the refuge of the powerless. Because oftentimes they can lose in the democratic back and forth. They may be locked out and prevented from fully participating in the democratic process.
"It is time for a different attitude in the Supreme Court," he said to great applause at the Planned Parenthood rally. He wanted a more assertive Supreme Court—in favor of abortion. And so his new pose as an exponent of judicial minimalism—like so much of his rhetorical strategy—deserves a chuckle, but nothing more.