What to make of President Obama’s comments on judicial activism?
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.
On the one hand, I always enjoy a good mocking of conservatives on this issue. And you know damn well they’ll be cheering this particular countermajoritarian decision if the Court does indeed strike down the law, and wholly missing–yet again–the irony.
On the other hand, Obama seems quite serious, not at all tongue-in-cheek. The language conveys that he’s not just poking at hypocritical conservatives.
“…unprecedented…step…” Where’s Inigo Montoya when you need him?*
“…that an unelected group of people would somehow overturn a duly constituted and passed law.” Really? Our Constitutional Law Professor-in-Chief is unfamiliar with the concept of judicial review?
“[S]trong majority of…Congress?” Eh? Surely the passage of a mere 16 months hasn’t been long enough for him to start romantically over-remembering the size of the Democratic majority that squeaked the law through on a strict party line vote?**
“…I’m confident that this Court will recognize that and not take that step.” So Obama wants the Supreme Court to rule based on politics, rather than having any niggling little worries about constitutionality?***
I’m inclined to take the President at face value here. He’s shown in enough other ways that he doesn’t believe in the rule of law. Despite right-wing claims about him being a nasty elitists, he’s just a classic old-time populist, pure majority rule, kind of politician. At the time I voted for him I didn’t like him much, but I didn’t deeply despise him. I no longer remember why.
* “You keep using that word. I do not think it means what you think it means.”
** To be clear, I not suggesting that the narrow margin of victory is politically problematic. But margins of victory also aren’t legally relevant.
*** That’s not a claim that the law is unconstitutional, only that its constitutionality should be the only consideration of the Court, however it rules.