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.
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