Never thought I would find myself writing these words, but, President Obama is getting a bum rap. This is in the matter of the President’s so-called “warning” or “threat” to the Supreme Court with respect to the court’s deliberations over the constitutionality of the ObamaCare law and the “individual mandate” for which that law provides. A surprisingly wide array of commentators, including several known to have a pronounced preference for the views of the Left in general and the President in particular, has come down hard upon the President, indicating that his public comments on Monday, April 2, 2012, were improper, un-presidential, factually and legally incorrect, and virtually without precedent. So, just what is it that the President said, to create such a furor?
Here is the text of what appear to be the two statements that have provoked most of the criticism:
* “Ultimately, 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.”
* “I’d just remind conservative commentators that for years, 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, this is a good example. And I’m pretty confident that this court will recognize that and not take that step.”
Clearly, this first of these two statements is mistaken, both as a matter of fact and as a matter of law; as the Attorney General has since acknowledged, there is ample precedent for the overturning by the Supreme Court of a law that was passed by Congress – regardless of whether the prevailing majority was “strong” or not-so-strong. Moreover, considering the narrow majorities by which Congress approved ObamaCare and the devious tactics through which the approval was achieved (e.g., the Cornhusker Kickback and the Louisiana Purchase), the term “strong majority” seems a bit much. As for the second statement, yes, the President went overboard. Overall, in the case of each of the statements, some criticism is warranted, particularly in light of the fact that the President once taught courses in Constitutional Law at the University of Chicago Law School. (And yes, the President, despite his and his supporters’ repeated descriptions of him as having been a “law professor,” was only an instructor, never a professor or even a full-time faculty member at any law school.)
The more serious problem lies with the second of the two statements, and that appears to be the statement that is drawing the heaviest criticism. Despite an almost universal claim that the President’s statement was a threat or warning to the Court or others, there is nothing in that second statement (or elsewhere in the President’s public statements on April 2) that amounts to any kind of threat or warning to anyone, and it is hard to discern even an implication of any. An expression of confidence as to an outcome, is not the same thing as a declaration of intention to inflict punishment or harm or a suggestion or promise of retaliation or other adverse consequences. Even more importantly, a careful reading of the first sentence of that second statement leads one directly to the conclusion that the President was not, as alleged by many, calling the Supreme Court an “unelected group of people.” What he actually said was merely that conservatives have referred to judges as unelected people and that conservatives have been critical of courts that have done exactly what it is that conservatives are now hoping the Supreme Court will do: use the powers of the judicial branch of government to overturn a law that was enacted by the legislative branch of government. In making that second statement, the President was absolutely, 100% correct; one need not look very far in order to find examples of conservatives hollering “judicial activism” because a court ruled a law unconstitutional – a prominent recent example was the case of California’s Proposition 8, in which the federal courts invalidated an anti-gay-marriage amendment to the California Constitution that had been enacted by public referendum. Take a look at the text of the vituperative comments made by conservative commentator Bill O’Reilly on his TV show on2/7/12, in which he specifically used the term “judicial activism” to characterize and criticize the courts’ rulings in overturning a duly enacted law on constitutional grounds. O’Reilly was hardly alone in being livid on this topic.
The problem, and conservatives would do better to recognize it, is that “judicial activism” is a handy slogan that they have turned into a pejorative phrase, while failing to recognize that their real problem lies not with the judicial-review process, but with particular outcomes of the application of that process. Conservatives should recognize that the problem is not that the courts have the power to overturn a law, but that the courts sometimes do a poor job of reasoning and of interpreting the constitution in deciding whether to overturn a law. The solution is not to undermine our carefully constructed scheme of separation of powers, it is to select better judges. Conservatives who scream “judicial activism” when the courts invalidate a law that they like, seem happy to accept judicial activism against a law that they dislike, such as ObamaCare – which, in the end, was President Obama’s point. Moreover, conservatives should realize that there is political risk in trying to criticize the judiciary for judicial activism, as was amply demonstrated, quite recently, when candidate Newt Gingrich was subjected to bipartisan censure for suggesting that we needed to find a way to punish or remove judges who engage in judicial activism.