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.
