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Today on Public Discourse, Mike Paulsen examines President Obama’s rhetoric regarding the Supreme Court review of Obamacare.

 The Unprecedented, Extraordinary, Anti-democratic, Activist Power of Judicial Review

http://www.thepublicdiscourse.com/2012/04/5246 President Obama’s recent quips about “judicial activism” do not amount to arguments. They are shallow sloganeering.

President Barack Obama has warned the Supreme Court not to rule against the constitutionality of his health care legislation: “Ultimately, I am 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,” he said. “And I’d just remind conservative commentators that, for years, what we have 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.”

President Obama must have skipped that day in constitutional law class at Harvard (and in his years teaching at the University of Chicago). How many things, exactly, are wrong with this picture? For openers, it is hardly “unprecedented” for the Supreme Court to hold an act of Congress unconstitutional. It has been doing so since Marbury v. Madison in 1803. “Extraordinary” is not exactly the right word, either. Depending on how one counts these things, the Court has struck down many scores of acts of Congress, and hundreds upon hundreds of acts of state legislatures. (Again: so much for “unprecedented.”) All of this is just the ordinary, almost humdrum, exercise of “judicial review.” For President Obama to claim that striking down an Act of Congress would be an unprecedented or extraordinary exercise of judicial authority is simply laughable.

And, as if on cue, nearly everybody laughed. The president and his attorney general–and even the president’s old constitutional law professor–quickly backed and filled, explaining that President Obama did not mean that, quite. He’d misspoken, if ever so slightly. The president meant something more nearly like that the justices should defer to Congress’s judgments on matters of constitutionality, and especially so in Commerce Clause cases, where it has been a long, long time since the Court has struck down an act of Congress.

That is, since 1995 and 2000, when the Court, in two landmark cases, invalidated the Gun-Free School Zones Act (United States v. Lopez) and the Violence Against Women Act (United States v. Morrison), respectively. To be sure, the connection to actual commercial transactions was weak in those two cases, but Congress had thought the link sufficient to permit it to legislate. The Court did not defer then. It is not clear why it might be expected to decline to exercise its independent judgment now.

Perhaps what’s different about the constitutionality of Obamacare is the “strong majority” (in the president’s words) that passed the Patient Protection and Affordable Care Act? Not likely: it passed the House 219-212, with zero Republican votes, and barely defeated a filibuster in the Senate–neither an overwhelming margin of passage nor a model of bipartisanship.

Is the fact that Congress is “democratically elected” and courts “unelected,” standing alone, sufficient to require courts to defer to Congress on issues of constitutional law? It cannot be. If it were, judicial review would never be warranted; the Supreme Court would be engaging in improper “judicial activism” every time it found a “duly constituted and passed law” contrary to the Constitution–more than 150 times with federal statutes alone.

To be sure, deference to democratic choice makes sense when a constitutional provision bears a range of meaning and elected officials have acted within that range. But that merely begs the question-in-chief: has or has not Congress acted within the bounds of its limited powers?

That is a classic judicial question. Judicial “restraint,” or “deference,” cannot properly mean abdication of courts’ independent constitutional role, simply because Congress has acted. That would be inconsistent with the Constitution’s deliberate separation of powers and the independence of the branches, notably including the judiciary. The framers thought that making judges “unelected”–making them not subject to political forces–was crucial to fortifying the independence and integrity of their judgment. What we call “judicial review” is really nothing more than the independent power of constitutional interpretation by courts, acting in the course of their ordinary duties of applying the law to decide actual cases. As such, it is a straightforward inference from the separation and co-equal authority of the branches, combined with the supremacy of the Constitution over other law. (Judicial review, a sound doctrine, should not be confused with judicial supremacy, the unsound assertion that whatever the judiciary says binds the other independent branches, no matter how wrong its decision might be. That claim, though often made, is itself contrary to the independence and co-equal authority of the several branches and the supremacy of the Constitution.)

Judicial deference to the political branches means taking seriously their well-considered constitutional views about legislation. The case for deference to Congress’s constitutional judgment is strongest where Congress has actually considered a constitutional problem and thoughtfully resolved it one way rather than another, based upon thorough, careful consideration of facts or realities peculiarly within its competence to evaluate. Often Congress does exactly that. With the Affordable Care Act, not so much: when Nancy Pelosi was asked, “Where specifically does the Constitution grant Congress the authority to enact an individual health insurance mandate?” she famously scoffed, “Are you serious? Are you serious?!” Congress did not give this issue serious thought.

None of this necessarily means the mandate is unconstitutional. Nor does it mean that there is never any such thing as “judicial activism.” (We all know better than that.) Nor does it mean that it is improper for the president of the United States to weigh in with his own arguments about a law’s constitutionality or attempt to persuade the Court of his views. It simply means that President Obama’s vacuous quips do not amount to arguments at all. They are shallow sloganeering.

What is “judicial activism,” then? The phrase is often tossed about imprecisely and thoughtlessly, but it does have meaningful content. In its simplest sense, judicial activism is judicial decision-making contrary to true legal authority. In colloquial terms, it occurs when courts “make up” law without authority to do so: when they invent rights not supported by the text of the Constitution, invent powers not justified by the document’s language and logic, invent jurisdiction or remedies not warranted by law, or otherwise refuse to enforce laws as enacted.

Judicial activism has a flipside, which might be called “judicial passivism”: judicial decision contrary to law in the form of refusal to act in accordance with judicial obligation; allowing unconstitutional exercises of authority; declining to intervene to correct lawless action; unduly deferring to political authorities, when such deference is unwarranted; or adhering to a past precedent even when fully convinced it was wrongly decided. Thus there can be such a thing, ironically, as “activist judicial restraint.” When courts accede to violations by other branches of government, or perpetuate their own past errors, they commit an error that is simply the mirror-image of judicial activism.

There are of course many examples of illegitimate judicial activism–of decision manifestly contrary to law; of plain invention of rights, powers, and results not warranted by the Constitution’s text; or of abdication of judicial duty. But it is hard to say that a decision either way on the constitutionality of the individual mandate would be “activist.” No precedent is squarely controlling, the case pushes limits not before breached, and competing interpretive principles point somewhat in different directions.

So, what was President Obama trying to accomplish? What was he thinking? The answer seems obvious. The president was trying to lobby–woo, cajole, seduce, importune, perhaps intimidate with a presidential shot across the judicial bow–Justice Anthony Kennedy, and perhaps other wavering justices.

The justices voted, at least preliminarily, on the mandate case at their Friday afternoon conference the week of the oral argument. President Obama made his clumsy comments early the next week. The best speculation from informed observers is that the vote in conference leaned against the administration, but was perhaps not fully resolved. Then, someone on the left–perhaps a law clerk, with or without a justice’s blessing–leaked information (unethically) of the Court’s private deliberations to the administration, along with the catch-phrases that the liberal justices thought most likely to persuade the conservative-centrist Kennedy: “judicial restraint,” “deference to democratic choices,” “unelected judges.” Out popped the same types of arguments at a news conference–badly botched by President Obama, for whom such terms are something of a foreign language–in a last-ditch concerted effort by the administration and the left-wing justices to save the day.

Others have speculated that the administration had learned that the case already had been firmly decided, against the validity of Obamacare, and the president elected to launch a pre-emptive political strike against the Court’s anticipated ruling. This seems less likely, given the timing (why not wait until the Court hands down its ruling?) and the poor politics of such a move against the Court. It seems far more probable that Obama believed he could turn the case around by personally telling the Court that it would be “unprecedented,” “extraordinary,” “antidemocratic,” and “activist” to rule against him.

On the merits, none of those buzzwords is apt, as the public derision that followed has made clear. Whether such disingenuous presidential sloganeering will turn any judicial votes remains to be seen.

Michael Stokes Paulsen is University Chair and Professor of Law at the University of St. Thomas, in Minneapolis, and co-director of its Pro-Life Advocacy Center (PLACE).

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