Supreme Hooey

President Barack Obama says he’s confident that the Supreme Court will uphold his health care reform law, but he also seems to be preparing a campaign argument in case they don’t.

Speaking to reporters Monday during a rare press conference, this one forced by the visits of the Canadian and Mexican heads of state, Obama said it would be “unprecedented” and “extraordinary” for the court to strike down the law. He contended that a ruling against the law would be a betrayal of conservative principles regarding “judicial activism” and “judicial restraint.” He also suggested that overturning the law would violate the entire country’s democratic principles because “the law was passed by a strong majority of a democratically-elected Congress” and the Supreme Court is “an unelected group of people.”

It’s all hooey, of course, and one needn’t be a former editor of the Harvard Law Review or a former teacher of constitutional law at the University of Chicago to know it.

The Supreme Court striking down a law as unconstitutional is by no means “unprecedented.” Indeed, the precedents stretch all the way back to 1803 and the Marbury v. Madison decision that established the principle of judicial review, a fundamental fact of the American system that every high school student was once required to know in order to pass a civics course. Nor are such decisions at all “extraordinary,” as they’ve happened during almost every presidential administration since Marbury. The most famous example is the Supreme Court decision striking down Franklin Roosevelt’s National Recovery Act on the grounds that the constitution doesn’t empower the federal government to micro-manage every aspect of the economy, something that a self-described FDR buff such as Obama should know.

Equally absurd is the argument that a decision overturning Obamacare would be an affront to any principles that conservatives hold dear. Conservatives define “judicial activism” as courts imposing their policy preferences on the country rather than interpreting the law, such as the state courts that attempt to dictate how much the legislatures should be spending on education or welfare programs, or the judges and justices who have argued with a straight face that the people who wrote and ratified the constitution clearly intended for it to ensure the right to abortion or gay marriage. The only intellectual inconsistency and dishonesty is on the left, which has long applauded such activist court rulings but will object to a ruling based on the actual text and clear intent of the constitution.

It is hooey, too, to say that a ruling against Obamacare would be the least bit undemocratic. Justices aren’t elected, but they are chosen by people who are elected, their appointments are approved by people who are elected, and it is all done according to a constitution that was written by elected officials and ratified by the elected officials of the states. Furthermore, it is not just hooey but an outright lie to say that Obamacare passed with “strong majorities” in Congress. The majorities weren’t so strong that they included any Republicans, and many Democrats even defected when the bill squeaked through the house with a “strong” majority of 219-212, and in the next mid-term elections the people tossed many of the Senators and Representatives who did vote for it in order to replace them with candidates explicitly opposed to the law, including the first Republican to win a Massachusetts Senate seat since dinosaurs walked the earth. Obama does seem so concerned with the will of the people that he’ll accept the verdict of that election.

Obama’s rhetorical attacks on the Supreme Court might work, given the sorry state of high school civics courses in recent years, but history isn’t on his side. Franklin Roosevelt was the last president to wage a similar against the Supreme Court after the NRA decision, and public opinion turned against him to the point that the Republicans regained a toe-hold in Congress the next election. Even Roosevelt’s most worshipful hagiographers still regard it as a low point of presidency. Obama should know that, too, but given the state of Ivy League education in recent years perhaps he doesn’t.

— Bud Norman


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