Much has been written about President Obama’s comments this week addressing the Supreme Court’s review of the Patient Protection and Affordable Care Act (PPACA). These remarks reveal a great deal about the much-demagogued — yet widely misunderstood — issue of judicial activism. One of the greatest misconceptions about constitutional interpretation is the notion that judicial activism occurs only when the courts strike down popular, duly enacted laws. In reality, judges engage in activism whenever they engage in undemocratic judicial policymaking — whether they ultimately uphold or invalidate a given law.
Legally speaking, Obama struck a strange tone the other day. He doubted that the Supreme Court would take “the unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.” On its face, this was nonsense. The Supreme Court has struck down federal laws on many occasions throughout history. This is rightly so, for neither popularity, nor mere enactment, nor margin of passage makes a law constitutional. Surely the president knows this, since liberals like him constantly clamor for the courts to overturn laws that restrict abortion or prohibit same-sex marriage, no matter how overwhelmingly those laws were passed by legislatures. The president is by no means the only hypocrite on this issue; his disingenuousness pervades American politics today. Everyone is a judicial activist when it suits his political agenda.
Moreover, the precedents that Obama breezily mentioned in defense of the PPACA never addressed a policy like the individual mandate, so it is far from clear that the law comports with those precedents. At any rate, the Supreme Court has the power to overturn those prior rulings if it deems them erroneous. There is a convincing case to be made that those precedents (such as Wickard v. Fillburn and U.S. v. Darby) should be overturned, because they illegitimately expanded the federal government’s power to regulate interstate commerce beyond its original scope. Existing precedents will not necessarily save “Obamacare” from invalidation.
Yet the president erred most in describing a judicial invalidation of the PPACA as “judicial activism … an unelected group of people … overturn[ing] a duly constituted and passed law.”
Judicial activism is not about striking down laws per se; it is about judges interpreting the Constitution according to their own policy judgments rather than the document’s verifiable content. If that expression did refer only to judicial invalidations of duly enacted laws, then it would be nearly meaningless, since it is actually extremely rare for courts to invalidate laws on any grounds. More fundamentally, it would not accurately or adequately describe the phenomenon. The problem is that activist judges — unelected and unaccountable to the people — are not “saying what the law is” but saying what they think the law should be.
It makes no sense to define judicial activism as occurring only when the courts thwart legislative schemes, for that is only one way of “legislating from the bench.” A judge can impose his own beliefs on the country just as surely by upholding an unconstitutional law that he supports politically as by striking down a constitutionally valid law that he personally opposes. Furthermore, judges are just as responsible for striking down statutes that contradict the Constitution as for upholding those that do not. Failure to do so is a dereliction of judicial duty.
Obama is mistaken in saying that only an activist Supreme Court would strike down the PPACA. Quite arguably, only an activist Supreme Court would uphold it.