President Obama, who was obviously troubled by the questions asked during oral arguments before the Supreme Court about the Affordable Care Act, is laying the plans for what happens if his signature achievement is overturned: he will attack the “unelected” Supreme Court.
Somebody ought to explain to the former constitutional law adjunct professor that the court is unelected because the intention was that it be free from political pressure.
Although the president’s base automatically will fall in line behind this ploy, even a liberal columnist such as individual mandate supporter Ruth Marcus was initially taken aback by the president’s line of attack:
There was something rather unsettling in President Obama’s preemptive strike on the Supreme Court at Monday’s news conference….
Obama’s assault on “an unelected group of people” stopped me cold. Because, as the former constitutional law professor certainly understands, it is the essence of our governmental system to vest in the court the ultimate power to decide the meaning of the constitution. Even if, as the president said, it means overturning “a duly constituted and passed law.”
Somebody should also explain to the former part-time professor of constitutional law what judicial activism is. The right has long complained of judicial activism and the president is obviously hoping to hoist them on their own petard by charging that overturning the Affordable Care Act would be judicial activism.
Note to Professor Obama: Judicial activism is the term we apply when the Court goes beyond the law or the Constitution to do something they think is right. What the president is calling judicial activism is actually judicial review, established in 1803 in Marbury v. Madison, one of the foundational rulings in U.S. history. We studied it in American history in high school. Did the president skip it when he taught constitutional law at the University of Chicago?
Marcus again is very clear on this:
Of course, acts of Congress are entitled to judicial deference and a presumption of constitutionality. The decision to declare a statute unconstitutional, Justice Oliver Wendell Holmes wrote in 1927, is “the gravest and most delicate duty that this court is called on to perform.”
But the president went too far in asserting that it “would be an unprecedented, extraordinary step” for the court to overturn “a law that was passed by a strong majority of a democratically elected Congress.” That’s what courts have done since Marbury v. Madison. The size of the congressional majority is of no constitutional significance. We give the ultimate authority to decide constitutional questions to “a group of unelected people” precisely to insulate them from public opinion.
I would lament a ruling striking down the individual mandate, but I would not denounce it as conservative justices run amok. Listening to the arguments and reading the transcript, the justices struck me as a group wrestling with a legitimate, even difficult, constitutional question. For the president to imply that the only explanation for a constitutional conclusion contrary to his own would be out-of-control conservative justices does the court a disservice.
Worse, the president’s critique, and in particular the reference to “unelected” judges, buys into an unfortunate and largely unwarranted conservative critique of judicial power. We want our judges unelected. We want them to have the final constitutional say. The president should be arguing for a second term to prevent the court from tipping in an even more conservative direction, not channeling tired critiques from the right about activist judges legislating from the bench.
Conservatives have a long history of crying out against judicial activism—but for the most part they have responded by trying to elect presidents who would appoint justices who will stick to narrower rules, not by declaring war on the court and its constitutional role. This isn't the first time a Democratic president has clashed in this manner with the Court.
Still, I don’t know which is more disturbing—that this president appears unfamiliar with Marbury v. Madison or that he will say anything to get re-elected.
PS. Just noticed that the Wall Street Journal is also suggesting the president do some remedial work on Marbury v. Madison.