OTR Interviews

Supreme intimidation at work? What is the 'right thing' for the High Court to do about 'ObamaCare'?

The chairman of the Senate Judiciary Committee urges the Supreme Court to uphold health care reform law while Catholic groups sue over it. Who will win?


This is a rush transcript from "On the Record," May 25, 2012. This copy may not be in its final form and may be updated.

SHANNON BREAM, FOX NEWS GUEST HOST: The chairman of the Senate Judiciary Committee is urging the Supreme Court to, quote, "do the right thing," Senator Patrick Leahy demanding the high court uphold the president's health care law. From the Senate floor, he directly addressed Chief Justice John Roberts.


SEN. PATRICK LEAHY, JUDICIARY COMMITTEE CHAIRMAN: I trust that he will be a chief justice for all of us and that he has a strong institutional sense of the proper role of the judicial branch. Given the ideological challenge (INAUDIBLE) the Affordable Care Act and the extensive supportive precedent, it'd be extraordinary for the Supreme Court not to defer to Congress in this matter that so clearly affects interstate commerce.


BREAM: Just last month, President Obama was accused of trying to intimidate the high court. Is that what Senator Leahy is now doing?

Senator Mike Lee also sits on the Judiciary Committee. He joins us live. Senator, thank for your time tonight.

SEN. MIKE LEE, R-UTAH: Thank you.

BREAM: All right, what did you make of these comments by Senator Patrick Leahy? I mean, he took to the floor. They were very direct. They lasted, my understanding, more than 10 minutes. And he directly addressed the chief justice a number of times, almost, it seemed, like throwing down a gantlet.

LEE: Well, you know, most of the time, the team that's yelling the at the referee is the team that's losing. What's extraordinary about this circumstance is that the team yelling at the referee hasn't even lost yet, but they recognize that they're about to, and they don't like it. And so they're yelling.

That's what this is. I respectfully but very strongly disagree with Mr. Leahy's words. And I think that the Supreme Court is going to invalidate the Affordable Care Act, and it should because it's unconstitutional.

BREAM: Well, I got to tell you, I was sitting just feet away from him during the day that the individual mandate was argued. I know that you were in the courtroom, as well. And when chief -- excuse me -- Justice Anthony Kennedy started to ask some very probing questions and to express some doubts about the mandate -- and of course, he asked tough questions on both sides. But when he asked those first set of questions, Senator Leahy, it appeared to me, almost sort of sighed or grimaced at that point, feeling like, you know, those who support the law were in a little bit of trouble.

There are others who speculate that maybe these senators, maybe the White House know more. There may have been a leak from the Supreme Court that tipped them off to how the justices have voted because we know they've already voted, though they're still working on the opinion. What do you make of the speculation that there could have been some kind of leak?

LEE: Well, you know, I don't know quite what to make about it. Leaks at the Supreme Court are, as you know, Shannon, extraordinarily rare. I don't think they had to have a leak to know that they were likely to lose in this case.

I mean, if you read the briefs and if you sat through the oral argument, as you and I both did, you can tell that the Affordable Care Act is going down in flames. And it's doing that because it's beyond Congress's power to tell individual Americans they have to buy health insurance.

BREAM: Clearly, that's not how your colleague, Senator Leahy, sees it. Here's part of what he had to say in talking about the court and whether the justices decide to uphold the law or not. He said, "The conservative activism of recent years has not been good for the court." He was talking about -- these remarks to the chief justice. And he talked about an activist majority and the fact that if these folks decide against the health care law, they'll be activists.

Is that a proper characterization of what they would be doing in making a decision here?

LEE: No, it's not. And for that reason alone, I usually shy away from use of the word "activist" because we have to remember that it's the court's job to decide cases that are brought to its attention, that are brought into the court's jurisdiction.

And a court that refuses to invalidate an unconstitutional law like this one is every bit as bad as a court that invalidates a law that is constitutionally just fine. Either way, you have a court that's not doing its job, that's doing something that it shouldn't be doing. And both are equally reprehensible.

BREAM: OK, I want to ask you about another set of lawsuits that has been recently filed, 12 of them encompassing 43 plaintiffs, a number of Catholic institutions fighting back against the HHS mandate that would require them in some ways to cover insurance services that go against the tenets of their faith when it comes to birth control and things that they consider possibly causing abortions after conception.

What do you make of the lawsuits? It was obviously a very coordinated effort. Do you think the administration underestimated the response that we'd get from the Catholic church and other religious groups?

LEE: I think the administration certainly made a miscalculation here in taking the truly extraordinary step of telling religious institutions how they have to operate and that they must operate in a manner that is manifestly contrary to the tenets of their faith.

This is governmental hubris at its height, and it demonstrates the fact that a lot of people in government who want bigger and bigger government are unwilling to recognize that some people live according to a higher law. They're unwilling to have anyone else operating under a law higher than that imposed by government.

BREAM: All right, that might be the next trip to the Supreme Court. Senator Lee, we always appreciate your time. Thank you.

LEE: Thank you, Shannon.