“For years, what we’ve heard is the biggest problem on the bench was judicial activism or the lack of judicial restraint, that an unelected group of people would somehow overturn a duly constituted and passed law,” said Obama, “and I’m pretty confident that this court will recognize that and not take that step.”
While some may welcome such strong language, particularly after the perceived failings of the government’s position at oral argument, it is misleading and dangerous.
The Supreme Court, in relation to federal law, is anything but activist. In fact, some argue that the high Court has abdicated its responsibility as a check on the other two branches.
According to the Institute for Justice’s Center for Judicial Engagement, of the 15,817 laws that Congress passed from 1954 to 2002, the Court has only struck down 103 – or roughly two-thirds of one percent. Of the 21,462 federal regulations passed from 1986 to 2006, the Court struck 121 – barely half a percent.
Put another way, in a given year, the Supreme Court will strike down three out of every 5,000 laws passed. If there is someone out there that wants to call that activism, they should probably get their head checked.
That said, the numbers are honestly neither here nor there. In reality, this isn’t a question of the Court’s “activism,” but of Obama’s attempts to position himself appropriately should the Court’s decision come out against him.
By calling for restraint and preemptively painting the Justices as “activist,” Obama is creating a scapegoat should the mandate fall. Wrapping himself in the shroud of democracy and casting stones at an “unelected” Court is a shot across the bow in preparation for what could become an ugly aftermath.
Unfortunately, this approach is both inaccurate and divisive.
The Founders’ purpose in creating three co-equal branches of government was to allow power to check power. “Duly constituted and passed laws” are often incredibly unconstitutional (Brown v. Board, Lawrence v. Texas, Brown v. Entertainment Merchants) which is exactly why we allow for the process of judicial review to make the determination independent of political pressures.
Alexander Hamilton, in Federalist No. 78, called the courts “the bulwarks of a limited Constitution against legislative encroachments.” Their purpose, wrote Hamilton, was to “operate as a check upon the legislative body.”
This is exactly what the Supreme Court is doing today – exercising their power of judicial review to determine if the legislature and the executive are acting within their defined constitutional limits. The Justices did not bring the lawsuit; they merely agreed to hear it.
While President Obama plays a necessary game of politics in preparation for what could be a disastrous ruling for his landmark legislative accomplishment, he should tread carefully on casting the Supreme Court as enemies of the people. Should the law fall, the fault will lie with its authors, not its interpreters.