The rhetoric of judicial activism

President Obama's complaint about judicial activism rings hollow in the light of other controversial decisions handed down by the Supreme Court.
James S. Cole | Apr 12 2012 | comment  



At a press conference on April 2, President Obama attempted to paint conservatives as inconsistent about “judicial activism” by saying that an adverse decision by the Supreme Court on his health-care law would be an example of it. He professed to be confident that the Court would avoid taking such a step. Here are the key sentences of what the President said:

“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. 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.”

The President's choice of words was rather infelicitous. They opened the door for some in the media to portray his remarks as a challenge to the authority of the federal courts. (Sample headline: “Obama warns 'unelected' Supreme Court against striking down health law”.) They implied it was an attempt at intimidation. At least one federal court of appeals judge took it that way. A day after the President's words, he ordered a Justice Department attorney who was arguing a case on the health care act before him and two other judges to submit a three-page single-space letter to the court on whether the Administration accepted the principle of judicial review of the constitutionality of statutes.

It is more likely that the President intended irony than intimidation. He was feigning concern about judicial activism in an attempt to highlight his opponents' perceived inconsistency. But his clever attempt at irony backfired. He used language that seemed to take aim at the Supreme Court when he meant only to throw an insult at Republicans.

The President's off-the-cuff remarks are useful for what they reveal about the reckless use of rhetoric. In the remarks quoted above, the President quite efficiently packed several factual misstatements into one opening sentence.

First, the President described the his Patient Protection and Affordable Care Act (PPACA) as “passed by a strong majority...”. Actually, the PPACA barely passed, by the slimmest of margins. How can Americans forget the high drama played out in the daily broadcast news when the bill hung by a thread in the House for several weeks early in 2010? It took then-Speaker Nancy Pelosi and her assistants a long time to browbeat the opposition sufficiently to eke out a House vote of 219 to 212 in favor of the bill. A margin of 7 votes out of 431 cast is not a “strong majority.”

Second, the President characterized a possible ruling that the PPACA is unconstitutional as “an unprecedented, extraordinary step of overturning a law that was passed by a... democratically elected Congress.” The President knows better. He regularly celebrates a series of decisions that for almost 40 years have overturned law after law enacted by democratically elected representatives of the people to regulate abortions. The leading case in this series, Roe v. Wade (1973), earns his praise on its anniversary every January 22 without any mention that it overturned the democratically enacted abortion laws of all 50 states.

And with monotonous regularity from 1973 through 1989, and to a lesser extent even to the present day, the federal courts, following the US Supreme Court's lead, have struck down successive laws regulating abortions that have been enacted by democratically-elected legislatures.

It is not just abortion regulation laws that are regularly struck down as unconstitutional. Almost every adult in this country knows that the federal courts, and increasingly the state courts, regularly strike down laws enacted by the people's duly-elected representatives concerning public displays of religion, regulation of pornography, bans on sex between teachers and students over 18, restraints on desecration of the American flag, and so on. The President well knows that overturning statutes on the ground of unconstitutionality is an all-too-regular occurrence, which is neither “unprecedented” nor “extraordinary.”

The President tacitly conceded that point when, on the day following his original remarks, he claimed he actually meant it would be extraordinary for the Court to strike down legislation that “was passed by Congress on an economic issue.”  Citizens should ponder why this President considers it all right to strike down laws enacted by the people's elected representatives that seek to lend support to the moral fabric of society in which people must live and raise families, but not all right if the laws are primarily economic in nature.

Note well, also, that this is the same President who has twice approved of his Attorney General's refusal to defend in the federal courts a “law that was passed by a strong majority of a democratically elected Congress,” the federal Defense of Marriage Act. The reason the Attorney General gave to Congress for this refusal? This Administration deems the law to be, well, unconstitutional. How about the fact that it was passed by overwhelming majorities? The votes on the Defense of Marriage Act were 342-67 in the House of Representatives and 85-14 in the Senate. There is no comment from the President on that point.

So is it the President's view that only he has the power to declare laws unconstitutional?

Now there are important principles to keep straight in this controversy. I am a critic of the excesses of judges who create constitutional rights out of thin air, such as happened in Roe v. Wade. Courts exist to decide actual cases by applying existing law to the facts in evidence. Courts should not create new law, especially constitutional law, in any substantial way.

But there is a proper role for the courts in measuring laws against the standards that are already found in the Constitution. It is “judicial activism” to make up new “rights” out of “penumbras” of other rights, as in Roe, but it is not “judicial activism” to find that the federal government violates the Establishment Clause of the First Amendment when it second-guesses the hiring and firing of clergy by churches, as in Hosanna-Tabor School v. EEOC. The Constitution is, after all, the ultimate statement of the people on the law that governs them, designed to last over the generations so that none of the branches or levels of government overreach their proper bounds.

Americans should ensure that whoever occupies high offices in this Republic will select judges who reject true judicial activism, but Americans should also refuse to allow “judicial activism” to be used as a rhetorical cudgel in politics. The rule of law depends on both.

James S. Cole graduated from Harvard Law School in 1978 and practices law in St. Louis, Missouri.



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