How To Precede?

President Obama is losing his battle with the Supreme Court before it's even ruled on his landmark health care legislation, and he started off on the wrong foot in his mouth this past Monday when he suggested that a declaration of the law as unconstitutional would be breaking precedent. "I would just remind conservative commentators that for years what we've heard is the biggest problem on the bench was judicial activism or a lack of judicial restraint, that an unelected group of people would somehow overturn a duly constituted and passed law," he said. Well, this is a good example."

During his speech Tuesday to the convention of the American Society of Newspaper Editors, after it became apparent that Obama had somehow forgotten about the landmark 1803 Marbury v. Madison case that invalidated a law affecting the judiciary that was passed by a democratically elected Congress, setting such a precedent of declaring laws unconstitutional, the President attempted to clarify his remarks. He did so in a statement full of long pauses, suggesting that Solicitor General Donald Verrilli isn't the only one in Washington who has trouble making a verbally coherent legal case:

"The point I was making is that the Supreme Court is the final say on our Constitution and our laws, and all of us have to respect it. But it's precisely because of that extraordinary power that the court has traditionally exercised significant restraint and deference to our duly-elected legislature, our Congress. And so the burden is on those who would overturn a law like this."

He seemed to suggest that the Court should always hold back every time Congress passes a law that's constitutionally dubious, and some took his ongoing remarks as an attempt to intimidate the justices into upholding the law. White House press secretary Jay Carney had to clarify the clarification.

"It's the reverse of intimidation," Carney insisted. "He's simply making an observation about precedent and the fact that he expects the court to adhere to that precedent." But as Carla Johnson of the Associated Press pointed out, an overturning of the health are law, while it would be unusual, would "not be unprecedented, even under the very narrow terms Obama and [Carney] later attached to his comments."

In short, the White House hasn't explained anything about the standard of judicial precedent after three attempts in as many days.

If President Obama - a constitutional law professor - can't articulate an understanding of the role of precedent at the Supreme Court, how does he expect the rest of us to understand it?