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The Obama Watch

What Judicial Activism?

By on 4.9.12 @ 6:08AM

A court is doing its duty, not legislating, when it strikes down an unconstitutional law.

Last week, President Barack Obama warned the Supreme Court against the perils of judicial activism. Specifically, he warned against the Court ruling unconstitutional Obamacare.

“Ultimately,” said the President, “I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.” 

If so, this would certainly run counter to President Obama’s position in 2005, when, as one of only 22 senators opposing the confirmation of John G. Roberts as Chief Justice, he stated he would support the appointment of a judge “who upholds the Court’s historic role as a check on the majoritarian impulses of the executive branch and the legislative branch.”

In any case, the congressional majority for Obamacare was far from strong. True, the Senate vote was decisive enough — 60 to 39 — albeit along party lines, with no Republicans on board. But in the Congress, the majority was slim — 219 to 212 — again, with no Republicans voting in favor. 

In any case, however, the extent of the majority is irrelevant. The Court’s duty is to ascertain the constitutionality of the law and may strike it down if it finds it wanting. That duty is not attenuated by the size of the majority with which the law was passed.

“For years,” continued President Obama, “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. Well, there’s a good example, and I’m pretty confident that this court will recognize that and not take that step.”

Yet President Obama, as a former constitutional law professor, knows better than most that judicial activism is not defined by judges striking down a law. It is defined by striking it down without constitutional warrant, on the basis of newly propounded rights or duties never approved by the legislature. In contrast, striking down a law that violates the Constitution is scarcely judicial activism.

But then it is typical for those favoring judicial activism to beseech conservatives, in the name of judicial restraint, to robotically confirm unconstitutional laws. 

And the President is such an activist. His two nominees to the Supreme Court — Sonia Sotomayor and Elena Kagan — have been judicial activists. As he put it in 2005, his preference was for  someone who would give decisive weight, where legal clarity is lacking, to “what is in the judge’s heart.” One suspects that the President’s best hope now is that Chief Justice Roberts sticks to the Constitution — though even this may not save Obamacare — rather than do any such thing.

Stung by the prospect of judicial rebuff, supporters of Obamacare have struck back. Their attempts have been as heavy-handed and inept as the President’s.

Many were aghast when Newt Gingrich recently proposed having judges on the carpet for activist decisions. Will liberals be aghast now that David R. Dow has proposed impeaching the Court if it strikes down Obamacare, a law he describes as “clearly constitutional”? Who needs a Court to decide delicate matters of constitutionality when Professor Dow can do the job better?

The New York Times’ Maureen Dowd has attacked the Court as “accountable to no one once they give the last word.” Perhaps, but would she wish this altered in the case of  Brown v. Board of Education, which ended segregation in schools and entailed overturning laws deemed to have violated the Constitution?

Dowd also complains, “it isn’t conservative to overturn a major law passed by Congress in the middle of an election.” But if a law is found to be unconstitutional, does it acquire immunity from such a verdict on account of an election campaign?

We do not know how the Court will rule on Obamacare. But we should be grateful that the judges have indicated that the issue turns on constitutionality, not election cycles, presidential pressure, or threats of retribution.

 

About the Author

Daniel Mandel is a Fellow in History at Melbourne University and author of H. V. Evatt and the Establishment of Israel: The Undercover Zionist (Routledge, London, 2004). His blog can be found on the History News Network.

Letter to the Editor View all comments (37) |

Appleby| 4.9.12 @ 7:47AM

Perhaps one of the best things that can happen in these turbulent times is for Obama to continue to overreach himself and the mechanisms of the American government to thwart him. This will go a ways to reassure the American public that is capable of thinking past the latest tweet that the foundations of the country are still strong and can handle renegades without an immediate revolution. It may also encourage some of the less deranged school districts to start teaching our founding documents again and explaining how the system works.

We can but hope.

"WOLVERINE" in training| 4.9.12 @ 11:37AM

here's the only way to get rid of the evil puppet
of the extreme left...
namely, every day, every way, every chance,
try to talk someone into realizing he is a
liar, hurting the country, dependence of our
children on govt is bad thing for each and
every one of our children....etc

it's the only way,...and i mean in grocery
lines, athletic clubs, store dressing rooms,
cashiers, wine tasting, bus stops, ...

Mimi| 4.9.12 @ 8:41AM

I hope in writing their decision no matter what it is, it is CLEAR as a bell...understood fully by a third grader...with teaching and information the populace can repeat to all the generations to come, let it be a snap-shot of what is AMERICA, and truthfully what it is about...for posterity!

Anthony| 4.9.12 @ 9:41AM

This is typical Orwellian-Alinsky bullshit from the Muslim Marxist, who once was a lecturer in Constitutional Law at the Univ. of Chicago.
Leftists like Obozo twist words and meanings to suit their agenda. Judicial activism is not striking down an unconstitutional law, it's finding new rights in the Constitution when no such right(s) exists.
Obozo and his henchmen know this, but Obozo is an out of control narcissist who sees his agenda and presidency sinking like the Titanic.
Oh by the way, Obozo is not just an Alinsky situational ethics guy, he's a complete and total hypocrite.
Next month, Obozo's articulate Solicitor General will be arguing in front of the Supreme Court to STRIKE DOWN the Defense of Marriage Act.
Hmmm, I think that's asking the Supreme Court to hold an act of Congress unconstitutonal. I hope Scalia asks the Solicitor General to explain that one!!
Maybe Roberts will give him and Holder another homework assignment, on the ethics of talking out of both sides of your mouth.

Mike Hawk| 4.9.12 @ 12:44PM

Obozo lectured about radical interpretation of the 14th Amendment only. That hardly makes him a COnstitutional lecturer, much less a scolar. That's like him giving a talk on how to make a boiled egg and then calling him a gourmet chef. That would mean Moochelle is a nutritionist because she talks about eating your peas.

Mark MacInnis| 4.9.12 @ 9:54AM

To any Liberal who supports President Obama's assertion that any branch of government which would overturn a "duly enacted" law "passed by a strong majority in Congress"....

I give you the galloping contradiction that is the Obama administration.

Exhibit A: The Defense of Marriage act.

While our President is lamenting the treatment of his signature piece of legislation at the hands of our esteemed Supreme Court, and claiming that the courts ought not dare to thwart the "will of the people" as expressed in Congress by overturning a law which will affect so many, guess what is happening.

Almost simultaneously, Department of Justice attorneys, under the watchful eye of Obama's friend and trusted associate Holder, are trying to ....thwart the will of the people by petitioning a court to overturn a law duly enacted by a LARGE majority of Congress...the DOMA!

So, it appears that the degree to which the Obama administration feels it is the court's place to be "activist", depends on how they feel about a particular law.

I remember being taught as a student, that the job of the "executive" branch was to "execute" and enforce the law. Not to make it.

Apparently, we are no longer a nation of laws, but of men. And one man in particular seems to think he is at once above the law, and omniscient enough to know which laws are "good for us" and which ones are not.

I am surprised that Obama's mouth is so relatively small....since he seems to be talking out of both sides of it so many times. But then, with the forked tongue of a serpent, and the divided heart of a traitor, he can simultaneously speak diametrically opposing statements, and yet expect us to believe each syllable.

What a farce this presidency is....

Louis Jenkins| 4.9.12 @ 9:57AM

"Yet President Obama, as a former constitutional law professor..." Really? We don't know what Obama was or has been. A complete question mark around Obama, and calling him a law professor is beyond the pale. A community organizer, maybe. A man with a do nothing history, except communism. A Muslim, a vacationer, a golfer, but not a law professor.

David W| 4.9.12 @ 10:02AM

If Congress were to pass a law that would require those who cannot pay their debts to be sent to prison, would the left be aghast if the court were to rule that the law is unconstitutional? Or would the leftists say, "well, Congress passed the law, it must be constitutional if they passed it, thus the Supreme Court would rightly be accused of judicial activism if they declared the "economic slavery" law unconstitutional."

A. C. Santore| 4.9.12 @ 10:04AM

I believe Alinsky also taught that one should accuse the other side of exactly what they have been doing themselves.

Liberal justices who create new "rights," or rewrite statutes, or change their meaning, are activist, not justices who rule on constitutionality.

Von Mises Jr.| 4.9.12 @ 10:14AM

The sovereign in the United Staates Constitution is "We the People," not Justice Anthony Kennedy. The Courts rule on the constitutionality of legislation since Marbury v. Madison; but the Enumerated Powers, Article I Section 8, specifically identifies the power of the central government. If it is not Enumerated in this section; it is a power of the states and of the people.
I am not a Constitutional lawyer, but I do know enough about philosophy and logic to know that the Supreme Court cannot deem ObamaCare Constitutional. Their only option other than declaring it unconstitutional is to deem that we no longer have a Constitution.
This is a different issue that demands a different solution.

KennesawJack| 4.9.12 @ 11:29AM

Well said, Von. We do have one problem, though. It has become fashionable, since the assault on liberty began under FDR, to ascribe to the Supreme Court justices the magical power to discern the "intent" of the Founders. When that can of worms gained cachet with the public, the Constitution became completely vulnerable to political and personal whim. I agree with your statement that implies a clear understanding of the doctrine of enumerated powers but I fear that the doctrine has become so nebulous that we don't have a clue as to how the Court will rule. Damn sure shouldn't be that way, but it is.

Von Mises Jr.| 4.9.12 @ 11:35AM

The Magna Carta, our Constitution and the Bill of Rights all rejected despotic rule and tyranny of the minority. I will not fold my tent and go home if one man, Anthony Kennedy simply decides that it was all a mistake.

KennesawJack| 4.9.12 @ 11:52AM

I'm with you on that.....

Al Adab| 4.9.12 @ 12:16PM

This has tyhe potential to become the most telling Court decision of our lifetimes. Many of the States involved will not comply with the law even if it is upheld. The Court will try to fashion some sort of "inderstanding" and perhaps a new power, but that is a dangerous road. All too many States and very many people, citizens, will simply state, "We will not comply".

Our Dr. has already retired and he certainly cannot be the only one deciding to get out early.

Von Mises Jr.| 4.9.12 @ 12:54PM

If the small Red states comply with OsamaCare, they will commit financial suicide. The third day of the hearings focused on the state mandates. The states will be forced to pick up coverage for Medicaid for any family up to 138% of the poverty level, or about $30K.
In NYC, $30K income would leave you sleeping under a bridge and dumpster diving. You would truly be poor. But in AL, MS, GA, AR, NE, OK and many other small Red states, most of the people in the state would qualify for Medicaid. Hence, the states would be forced to provide almost all health care.
They could double, triple or quadruple taxes and in some of these states and it probably would not suffice. Property taxes in Charleston were $500 per year for a waitress I chatted with. Could they raise them to $5,000 next year? Would this woman be dumpster diving by February?

Eric| 4.9.12 @ 2:32PM

This is the answer to that particular problem
http://tenthamendmentcenter.co.....funds-act/

Von Mises Jr.| 4.9.12 @ 4:16PM

Spot on, Eric. I get their updates and listen to Ken Cuccinelli anytime he takes the time to speak.
This is probably where the battle will take place.

Al Adab| 4.9.12 @ 4:37PM

Which potential GOP nominee, if elected, would be most likely to issue an executive order exempting (waiving) the States participation in Obiecare? That is who we need.

fmm| 4.9.12 @ 12:44PM

The intent was clearly defined by the "Federalist Papers" on most issues.

KennesawJack| 4.9.12 @ 3:20PM

Until FDR.

Buck Ofama| 4.9.12 @ 9:11PM

Von, I understand that there is an opening for professor of Constitutional law at the school where Ovomit is said to have "taught".

You might be interested in applying for it, however, I doubt that they have yet removed the stench from the podium.

kwan| 4.9.12 @ 10:14AM

How do any of these Democrat morons even know if ObamaCare is Constitutional if none of them have even read it? My suspicion is that this abomination (ObamaCare) was cobbled together by a committee of commie-rats with close ties to George Soros. It doesn't take a rocket scientist to figure out that the real purpose of ObamaCare is to give the central government greater control over the lives of the American people.

Timely Renewed | 4.9.12 @ 11:13AM

Obama's hypocrisy here is palpable. He has no problem when the courts overturn laws he doesn't like, such as Arizona's immigration law.

However, conservatives need to remember that there is such a thing as inappropriate judicial activism. That is not where the Supreme Court is forcing the Congress to follow the Constitution, as with (we hope) the Obamacare litigation. It is when the Supreme Court itself does not follow the Constitution, as with all the decisions of the FDR appointed Supreme Court which ripped a massive hole in the interstate commerce clause to allow the vast expansion of the federal government's power over the last 75 years.

If we want to permanently stop and roll back the advance of the federal leviathan, we can not rely exclusively on the Supreme Court. We need to revive the power the Framers gave the People which overrides even the Supreme Court - amendment. Even if Obamacare is overturned, that still leaves in place all those New Deal decisions and lots of other ways for the Left to take over our nation including our healthcare. Only when the Constitution is amended to restate and re-affirm the original limits on federal power will we restore our Republic and preserve our freedom from not only future Obamacares but every other federal encroachment on our rights. See http://www.timelyrenewed.com

Russel| 4.9.12 @ 12:10PM

Is there ANYTHING this klown won't butt into ? . It's astonishing he didn't butt into the Masters , set up his podium and TOTUS and proclaim the game is unfair to women . The boob is as presidential as a toilet seat . Embarrassing .

Tim| 4.9.12 @ 1:25PM

But the scary thing is look at how close we came to loosing the USA.

The conservative Tea Party Folks got it back in 2010.

You would think that the Rino Establishment A__S H___S..........

would at least pay tribute to those patriots instead of making fun of them on the golf course or at their social clubs.

The problem is that the Rino Establishments are phony...semi Americans....who can give a rats behind about true conservative values that made this nation great.

and Obama is a phony American and pure socialist who hates our constitution.

Yet it looks like in January 2013 we will have one of these running the show.

Geesh we can do so much better!

Eric| 4.9.12 @ 2:26PM

The argument made by Obama and the Left regarding the majority in Congress that passed Obamacare as reason to exercise caution in overturning the law is week.

It's weak because that majority wasn't elected to pass Obamacare and was subsequently wiped out in historic proportions when they did pass Obamacare.

It's clear that the public was not and is still not behind this legislation.

therealguyfaux| 4.9.12 @ 2:28PM

The meaning of the terms as they are used by politicians:
Judicial Activism = "The court struck down a law I liked/ let stand one I don't."
Judicial Restraint = "The Court let stand a law I like/ struck down one I didn't."
No more, no less.
The more telling point is "judicial modesty": Do judges think they are singularly fitted to solve all the world's problems? Then such persons should never be appointed to the bench. The Supreme Court, in dictum (a part of the opinion not necessary to arrive at the decision in the case) in a case called Ashwander back in the 1930's, came up with a formulation of their decision procedures in which they basically said that as between deciding a case narrowly and broadly, narrow will win every time, for the purposes of doing justice in the particular case and cases like it, rather than set up sweeping rules that attempt to encompass every possibility, which would function as dogma which would make the Court have to bend the facts to fit the rule. Of course, the Ashwander principles (as they are called) are themselves sweeping rules and are ignored when the situation suits the Justices. It is also instructive that the Ashwander principles were formulated at a time when their application served to uphold the bulk of New Deal legislation, so we are back at the vexed question of what is activism and what is restraint as applied to Court decisions. But in any event, I would much rather see the Court at least try to confine their decisions to the case before them, and remorselessly say "threshhold question-- any justification in the least for this law under the Constitution, without tortured reasoning to fit some dogmatic viewpoint? No? Good bye Obamacare; Yes? Continue..." But you'd have to have Justices who would decide that, not based on whether they think Obamacare might be a good idea in theory (if they do), but on whether it's allowable. Maybe that might be too much to ask--we will see, won't we?

Ron| 4.9.12 @ 2:32PM

I hate to keep pounding on it...NerObama was never a "constitutional law professor." He was at best, a senior lecturer and appeared to focus on racial law and the constitution...He was not even on the University of Chicago's list of adjunct professors. The title "professor" was a title and not necessarily his level of education (just like when someone accepts their certifications at the National Judicial College, as I did in in 2007, the presenter's automatically call everyone "the honourable so and so.) Stop embellishing the Kenyan usurper's work and training experience...

NerObama is a L-S-D (Liberal Socialist Democrat) determined to destroy the United States in some anti-colonial, anti-Western crusade derived from his "father" (which is incredible considering he was abandoned with his mother at age 2-ish) and ingrained in the Islamic teaching of his youth.

Eric| 4.9.12 @ 2:36PM

"Ultimately," said the President, "I'm confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress." 

A strong majority that was decimated for their vote in 2010. If there was strong public support fr Obamacare the Democrats wouldn't have suffered so heavily after they defied the will of the public.

If I were an SC justice I might throw it out on those grounds alone. We cannot allow a temporary majority to impose its will on us.

Aces and Eights| 4.9.12 @ 3:53PM

Gee. The President of these United States (none other than Bozo the Clown himself!) is a liar and a hypocrite. Who woulda thunk?

He plays politics to gain a political advantage. wow. He uses taxpayer money to buy votes. amazing. He violates the Law and his oath. shocking. He puts forth forged documents. unheard of.

Who is really surprised by any of this? This boob was a known quantity before he was "elected." America turned a blind eye to the puppet of the Socialists and is now reaping the "rewards" of that lapse in judgement.

Too Late To Impeach| 4.9.12 @ 7:04PM

The notions that if Congress passes a law, it’s considered presumptively constitutional, and that the Supreme Court isn’t supposed to have the power to put on the brakes against an irresponsible President/Congress… Well that really threw me for a loop, that so many people believe that…. Then last night I heard a talk show host say, in essence, that according to the Constitution it’s the purpose of government to make things easy for us, and therefore they need to regulate commerce. Therefore, Obamacare is constitutional. That’s about when I started to feel I just don’t want to argue anymore…. I guess I have misunderstood all along….

kevo| 4.10.12 @ 4:01AM

blah blah blah. Court strikes down law you like, judicial activism. Court strikes down law you don't like, constitutional duty achieved. why waste space on articles like this?

Ceinture Cesare Paciotti | 4.10.12 @ 6:33AM

i like it

Margaret| 4.11.12 @ 5:08PM

When are people going to realize you have to use the same rules for everyone -- not to do so is hypocricy -- and it is prevelant with all the thetoric.

AVCurmudgeon| 4.16.12 @ 12:45AM

Had she somehow managed to leave any doubt in the past Maureen Dowd has shown herself to be an abject liberal hack.

She complains about a politically weighted SCOTUS, but pretends not to remember that it was just such a SCOTUS that gave us Griswold and Roe.

Worst, she completely fails to understand that while it is one thing to criticize a court's decisions it is quite another to attack the institution itself. In doing so she and her cronies forget that there have been many times in the past and will be many times in the future when they will seek the sanction of a SCOTUS decision. Having proclaimed the court to be an anachronism, how can they later pretend to its authority?

POST American| 4.19.12 @ 12:18AM

In this, the now UNDENIABLE
11th hour of the CFR---RED China
handover, sellout, TREASON and
FINAL EUGENICS OP
---what more to say about probable
Averell Harriman stealth clone,
and former Kissinger aide
--'BAR--Rockefeller' H. Obama?

---'Everything OLD is NEW-Remburg AGAIN!'

It TRULY is

--TRULY--

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