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.