Wednesday, 4 April 2012

0 Obama's misguided court critique

There was something rather unsettling in President Barack Obama's pre-emptive strike on the Supreme Court at Monday's news conference.

"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," Obama said. "Well, this is a good example. And I'm pretty confident that this Court will recognize that and not take that step."

Obama's misguided court critique

To be clear, I believe the individual mandate that is part of the Affordable Care Act is both good policy and sound law, well within Congress' powers under the Commerce Clause. I think overturning the mandate would be bad not only for the country, but also for the court itself. Especially in the wake of the Bush v. Gore and Citizens United rulings, it would look like a political act to have the five Republican-appointed justices voting to strike down the health care reform law and the four Democratic appointees voting to uphold it.

That unfortunate outcome would risk dragging the court down to the partisan level of a Congress that passed the law without a single Republican vote. As much as the public dislikes the individual mandate, a party-line split would not be a healthy outcome for public confidence in the court's integrity.

And yet, 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."

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 "an unelected group of 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. As I listened to the arguments and read the transcripts, the justices struck me as a group wrestling with a legitimate, even difficult, constitutional question. (Google)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.


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