Did President Obama flunk Con Law at his news conference Monday? It certainly seemed that way if you watched or read one particular part of it.
“Ultimately,” the president said, “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. And 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.”
But that’s not how it works, as the law professors who I emailed for comment pointed out.
“Obviously, all laws that are struck down as unconstitutional were passed through a democratic process,” wrote Jonathan Turley, a professor at George Washington University Law School. “Courts are given independence under our system precisely to counteract the unconstitutional actions of the majority.”
“I think the president misspoke when he suggested that any ‘duly constituted and passed law,’ following the form for lawmaking, is constitutional,” wrote Dale Carpenter, a professor at the University of Minnesota Law School. “That would mean that Brown v. Board, Roe v. Wade, and Lawrence v. Texas were all instances of activism, and I'm pretty sure the president doesn't believe those decisions were activist.”
Kenji Yoshino, a law professor at New York University, didn’t think it was fair to take Obama’s statement at face value.
“Do we really think President Obama, a former teacher of constitutional law, believes that any act of Congress enacted by a strong majority is immune to judicial review?” he asked in an email. “So, for instance, if Congress decided to allow a state a third senator with a strong majority, the Court would not be able to invalidate that statute despite manifest restrictions in the Constitution to the contrary?”
“I find that impossible to believe,” Yoshino continued, “especially when the President's pronouncement is viewed in context”—that is, as following up upon the rather eloquent defense of the law that preceded it in his news conference.
Whether or not Obama meant what he said—and it certainly seems, from that first sentence, that he implied that the majority by which a law is passed should have a bearing on how the courts treat it, which isn’t true—he opened up a can of worms by wading into the morass of “judicial activism,” a term that should really be left to die on the side of a road somewhere.
It’s understandable that Obama would relish the idea of turning this conservative weapon back on its wielders—the right has been attacking Democrats with the “judicial activism” bogeyman for a long time now on issues like abortion and gay marriage. And the Supreme Court really would be acting in an activist manner if it overturned the Affordable Care Act on the ground that the individual mandate violates the Commerce Clause of the Constitution, making the term all that more tempting an implement to pluck from the rhetorical toolbox.
But that doesn’t make it a good idea, because “judicial activism” doesn’t really mean anything in our current political environment. As Turley put it in his email, it “has become a rather worn-out phrase that often amounts to little more than a court not doing what a politician desires or demands.”
I’d take things a step further: the term has been so totally melted into nonmeaning by the heat of opportunism that it’s unrecognizable, and those who actually understand how the law works should heave it aside like a dangerous toy.
It’s been a resonant and contagious part of our political discourse for a while. For the many people who don’t understand the basics of constitutional law or the separation of powers, there are few things more terrifying than the notion of a small groups of elites—robed elites, no less!—swooping down from on high to strike down laws they like or erect laws they don’t.
But the law is more complicated than that. Judges don’t exist to cede to the will (or whims) of the people. They’re there to determine whether our laws are constitutional, often by taking the past decisions of past judges into account. Whether or not their decisions would pass muster in a poll or focus group is precisely beside the point. It is a complicated, nuanced process, even if “originalists” like Antonin Scalia would have us believe otherwise.
So Obama and the ACA’s other defenders shouldn’t go down this road. They should clearly and vociferously hammer away at the many specific, legitimate legal arguments that favor the ACA—not resort to a conservative buzz phrase that means nothing.