Oh, ‘Bama (sigh)

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.

About J@m3z Aitch

J@m3z Aitch is a two-bit college professor who'd rather be canoeing.
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31 Responses to Oh, ‘Bama (sigh)

  1. pierrecorneille says:

    I think it’s mostly Obama being a politician and a president. If a politician’s pet project is struck down, he or she touts the virtues of majoritarianism. If the pet project of an opponent is struck down, he or she touts the virtues of the rule of law and judicial review. Obama is working in his role as president and as highest ranking Democrat in the country. I’m not particularly surprised at this.

    I don’t despise him for this. (On the issues of civil liberties and his going back on specific campaign promises that he very well could have honored, however, I do have contempt for him.) In 2008, I voted for him pretty much for the same reason you gave, in another post (or was it at the League?), that I would like to say later that I voted for him. But I’m not disappointed in him; he is pretty much as I thought he would be.

    None of this is to excuse Obama. I admit that if his statements are wrong, they’re wrong. If he said otherwise, it would simply be a way of positioning himself to attain the same goals (reelection, possibly with reform of the ACA) with different tactics.

  2. Lance says:

    I suspect it was also a ploy to influence the SCOTUS to go his way. Let’s not forget that they don’t exist in a vacuum.

    Whatever Pres. Obama’s motivation it was slimy and hypocritical.

  3. James Hanley says:

    Pierre, I agree with you. Really this just hit one of my particular pet peeves.

    Given that it’s usually conservatives whining about judicial activism, maybe this is just more evidence that Obama really is a conservative.

  4. Dr X says:

    Of course he knows better. He’s resentment-baiting, perhaps trying to move some of the chronically resentful uncommitted voters over to his side instead letting them go to the resentment-baiting Republicans. The man has been known to compromise a principle or two. My guess is that this is Axelrod’s handiwork, and my guess is that this isn’t about influencing SCOTUS but making political hay out of defeat, should the ACA be struck down. I say that as someone who has been listening to David Axelrod talk about politics since the 80s.

  5. Lance says:

    Dr X,

    It does have that Axelrod aroma. I love to see Axelrod interviewed. He can take any question and effortlessly bend the answer to a talking point that had nothing to do with the original question.

    While he isn’t unique among political advisers in his low coefficient of friction (slipperiness) he is unique in his ability to anesthetize the interviewer into not noticing that he has used them to get out his message rather than answer the question.

  6. Troublesome Frog says:

    It doesn’t matter what the sport is. Watching the players try to work the ref inevitably makes me think less of them.

    But was that more for the voters or more for the court?

  7. AMW says:

    On the one hand, I always enjoy a good mocking of conservatives on [judicial activism]. 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.

    I always thought that judicial activism required positive steps by the judiciary, not simply striking down a law. Examples of positive steps would be creating a new right enshrined in the constitution, or requiring that congress or a legislature pass a law to be in constitutional compliance, or effectively creating a new law by creatively interpreting existing ones.

    I know, I know, in practice “judicial activism” just means “the Court didn’t do what I want.” Still, in theory I’m pretty sure it’s supposed to mean more than just judicial review.

  8. pierrecorneille says:

    “But was that more for the voters or more for the court?”

    My impression is that Obama’s statement was more for the voters. I find it hard to imagine that the justices would be swayed by a president’s speech, especially like the one James cited here. If anything, the justices most inclined to vote against the ACA would probably on some level be more entrenched against it after Obama’s statement.

  9. James Hanley says:

    But was that more for the voters or more for the court?
    I’m honestly unsure. I agree with Pierre that it’s hard to imagine the justices being swayed, but Obama is such an earnest moralist, so certain of his rightness (at least that’s how he’s struck me since about midway through his primary campaign in ’08) that I’m not sure he wasn’t actually talking to the justices. But interpreting it as intended for voters is probably the more parsimonious answer.

    Still, in theory I’m pretty sure [judicial activism] supposed to mean more than just judicial review.
    I’m not sure about that, for two reasons. First, the term is used regularly in response to court decisions striking down democratically passed laws, so in practice it seems to mean “the courts are being undemocratic in a case where I’m in the popular majority.” Second, I’m not sure there’s ever been a coherent and fully developed theory of judicial activism; at least not in any way that would enable disparate observers to agree upon when they’re seeing it. Perhaps this interpretation is correct (and it runs in line with AMW’s), but I’m not sure it matches common usage, and I’m not sure most legal scholars find the term theoretically meaningful.

  10. Michael says:

    I don’t dispute your broader point of Obama the majoritarian, but you miss the point on the president’s “strong majority” comment. 59 out of 100 Senators is a large majority — that’s Reagan-Mondale proportions there. The fact that current practice in the Senate requires large majorities for any new legislation does not make those majorities any smaller.

  11. michaeldrew says:

    Generally, I agree the comments in their totality are indefensible on the facts and the law, particularly the claim of overturning a law as unprecedented. (Though the extent to which they constitute an attack on, or attempt to undermine, the Court – or to deny its prerogative of judicial review – have been wildly overstated).

    But I would say that to read the comment fairly, we do have to acknowledge that, strictly speaking, when he talks about the idea that “an unelected group of people would somehow overturn a duly constituted and passed law, ” he actually isn’t giving his view on the law, or even his view of what he thinks about the judicial activism critique of the judiciary. He is saying what he thinks the traditional conservative critique of the bench would say about the action of striking down this law if applied consistently. What he says is just that striking down this law would be subject to that critique, and that he thinks the Court will (not should) recognize that and not strike down the law. He doesn’t say that that that is the reason he thinks they should have in not striking it down (which is not a claim that I know whether he thinks that ought to be their reason).

    In fact, throughout the statement, from the first time I heard it on the radio, I was struck by the absence of straightforward argument or even claim that the law is constitutional on the merits. It’s purely predictive statement about what behavior he expects from the Court. That goes as well for what he says about how the Court will respond to the fact that striking down the law would be a significant example of activism. This is absolutely a charge that the Court is a political body. But the denial of that claim is one that in my mind strains credulity, so I don’t find much to criticize for in that. Arguably, as the head of a co-equal, supposedly collegial branch, he should publicly uphold the fictions that the other branches represent to the public about themselves. My view is that this institution has done a poor enough job actually living up to the fiction that it is not a political body in recent years (decades?) that the other branches perhaps have a nascent, overriding obligation to the public not to participate in the ruse and to gently expose it instead.

  12. Lance says:


    First, and perhaps idiosyncratically, what do you have against spaces and capitalizing proper names?(You too pierrecorneille.)

    Second, you seem to be special pleading on the behalf of President Obama. His statement claiming judicial activism isn’t excused because the Republicans have done it in the past or by the fact that the Supreme Court has made decisions that could be viewed as political in motivation.

    The SCOUTUS is not the least bit concerned, or obligated to consider, that a law is popular. A law could be unanimously endorsed by every member of congress and the president and all the state legislatures, (and the freaking Girl Scouts of America) and still be egregiously unconstitutional.

    And he damn well knows it!

    He was being a pure and simple demagogue.

  13. michaeldrew says:

    I capitalized Court a bunch of times, and that’s the only proper name (sort of a semi- one in that context) that I see in my comment. I don’t see where I neglected to put spaces where they belong either.

    I basically don’t (and didn’t) deny that the president was being political and demagogic. I also said he was factually wrong in at least parts of his comments. The cynical part of me says that if we acknowledge the former, it’s kind of pointless to worry much about the latter. But still, it’s wrong to be wrong. And he was wrong (in saying overturning a duly passed law would be unprecedented – though he did attempt to explain the limits he meant for that statement to have the next day; it was still wrong after that).

    On the judicial activism claim, read what I say closer. The point he’s making is, if you were concerned about it (j.a.) then, you should be concerned about it now. I’m not sure what needs to be “excused” about his making that point.

    Finally, on popularity, the president didn’t say anything about popularity. he said it passed with a strong majority, which is factually debatable. But, on an argument that it’s true, there’s no reason he can’t say it’s true in the context of comments about the Court/the ACA litigation. (If it’s false, then obviously he can’t rightly say it’s true, because it’s false, but that’s not your point.) It’s true that the Court has no obligation to consider that in its ruling (indeed, it has an obligation not to as you say), but the president doesn’t say it has such an obligation. He says it would be extraordinary for them to take that step (arguably true, and certainly true in the context of signature domestic legislation), and unprecedented (wrong!), and that he’s confident that they won’t (i.e. predicts they won’t).

  14. michaeldrew says:

    Oh, you mean my screen name. That’s an automatic import, I don’t know why that comes in that way. I sign in in the combox, but then Gravatar recognizes my email address (or something) and I become michaeldrew. I don’t recall signing up for Gravatar using that sequence, but maybe I did. I’m not too concerned with it, to tell you the truth.

  15. michaeldrew says:

    Oh, wild. Strike the above. It’s because I have a WordPress account I almost forgot about where I once toyed around with their page customization stuff and chose a really ridiculous placeholder name for a blog I never had the follow-through to write any posts for. (Click on my name to be amused). The url of that blog is “michaeldrew.wordpress.com,” and it’s pulling in the individual part of that url as my screen name here.

  16. Lance says:

    Michael Drew,

    Oh, that explains it. I admit it is a pedantic idiosyncrasy, but I hate to see all of those non-capitalized, truncated, screen names. I thought it was just a fashion that someone had started because they thought it looked cool and that others had jumped on the bandwagon.

    Not that my writing is grammatically perfect, but I hate the recent degradation of the language in blogs postings, emails, and even worse in text messages.

  17. Matty says:

    I have never understood the convention in text messages of taking out the vowels and changing spelling. I mean I could understand, though not sympathise, if it was easier but my phones have always had predictive text so it would take more effort to turn “that’s great” into “thts gr8”.

  18. Lance says:

    I don’t see the utility in text messaging anyway. I can certainly speak more quickly than anyone can type in a text message and everyone has voice mail.

    I guess some people don’t actually want to speak to the people they are texting, or do so while the person is in, say, class.

    Another reason I hate texting. I am constantly having to tell students to put away their phones and playing games with people trying to hide them.

    Maybe I’m just getting old.

  19. Matty says:

    I find it convenient if I think the person might not be able to take a call. For some reason I dislike leaving voice messages, it feels wrong to have half a spoken conversation then wait an hour to hear the other half.

  20. James Hanley says:

    I don’t see the utility in text messaging anyway. I can certainly speak more quickly
    That requires real human contact. Ugh.

    Another reason I hate texting. I am constantly having to tell students to put away their phones and playing games with people trying to hide them.
    I have a note in my syllabus that I can either throw them out of class or take their phone and they can retrieve it from the Dean’s office (joys of a small school). I haven’t actually had to do either, yet, but I do mock them in class and talk about professionalism.

    What I can’t do is what a friend of mine at a community college sometimes does, ask them if they’re masturbating. “Oh, all I can see is your hands jerking around below your desk.”

  21. Lance says:

    James Hanley,

    What I can’t do is what a friend of mine at a community college sometimes does, ask them if they’re masturbating.

    I probably shouldn’t have read that. I’m likely to say it even though I know it will land me in some office somewhere in the universities vast though control department.

    When I wake students who are sleeping in class I frequently say things like.

    “Bobby, are you OK? I was afraid you had a stroke or passed out. Have you been drinking?”

    If they do it more than once I’ll say.

    “Bobby, have you been tested for narcolepsy.”

  22. Troublesome Frog says:

    The texting thing always amazed me. First, there was the telegraph. Then, we spent more than a century adding voice, wireless and a million other technologies. Fiber optic cable was laid. Satellites were launched.

    And now that all that work is finished, we put a telegraph on top of it.

  23. michaeldrew says:


    Amazing indeed. But I don’t really see wherefore not awesome.

  24. Lance says:

    My wife loves to text. She will text back and forth to a friend for fifteen or twenty minutes. I’ll ask her why she doesn’t just call the friend since she is holding, you know, a FREAKING PHONE, and she will look at me like I’m stupid.

    I just don’t get it. Maybe it’s the novelty of using the virtual keyboard on her smart phone?

    As I said, I don’t get it. She teases me that I’m a “shemagalay” which means old man in Amharic.

    Maybe I am getting old.

  25. James Hanley says:

    In the middle east young men and women will use texting to flirt. The guy will repeatedly walk past a girl reciting his phone number, or the girl will surreptitiously tap out her phone number or flash it with her fingers, then they will text, and nobody knows they are flirting with each other.

  26. Lance says:

    I guess texting makes sense if you live in a repressive Muslim country and want to flirt without starting a fatwa with the girls family or getting a street “beat down” from the mutaween.

  27. James Hanley says:

    I hate telephones. The ring of a telephone is one of the most stress-inducing noises in existence, and I don’t converse well on them (lack of visual cues, probably).

    Texting is ideal for short communication.

  28. michaeldrew says:

    Back on the substance for amoment, here’s a piece by Larry Lessig discussing what is and isn’t ruling based on politics for the SCOTUS. He suggests that ruling with an eye toward preserving institutional integrit… I’ll let him speak for himself:

    “Political” in this context means partisan. It is perfectly appropriate (and not in this sense “political”) for the Court to account for how its behavior weakens or strengthens its own institutional integrity. As I’ve described it elsewhere (my own “legal arguments” that Randy is “skipping over”) there is a fidelity to mean-ing and a fidelity to institutional role. A Court that ignores either is not behaving properly.


    Bit of a trailback there to get the full context, as this is a response to a response from Randy Barnett to a Lessig summary of the argument for ACA (or at least mandate) constitutionality, which happens to be the best blog-length précis of that argument I’ve yet seen, actually. (And in which Lessig’s comments about the potential for the Court to appear political if it were to rule adversely to ACA were secondary to the straight merits argument on ACA, Barnett’s response to them notwithstanding.) I recommend taking the time to follow the links back through the exchange.

  29. michaeldrew says:

    …Not necessarily endorsing that argument of Lessig’s on politics and SCOTUS’ institutional integrity, btw. Just wanted to highlight it, as it is on point to this discussion.

  30. James Hanley says:

    Thanks for the link, Michael. Hopefully I’ll have time to look at it in the next day or two.

  31. michaeldrew says:

    I think that Barnett has a strong point that, at least in the law classroom, however upstream the argument would be as a general popular matter, Lessig certainly does have avenues through which to explain the principled distinctions that justices voting to overturn ACA even with recent precedents could be relying on to in fact not be ruling based on politics as Lessig understands that category. But I also think that Lessig is right that he has little to use to combat the more broad *appearance* of such in that situation, taking all those cases together and noting their political contexts – and certainly that his efforts to do it would be pretty fruitless as to actually convincing people that that appearance doesn’t reflect the reality.

    I sort of doubt that Lessig wouldn’t at least offer those distinctions in his classes, so I think it kind of ends up being a question of to what extent Barnett would expect Lessig to stress as significant what he, Barnett, is committed to, regardless of Lessig’s assessment of it – and also of what does or doesn’t create the appearance of a thing (corruption, political rulings, etc.) when it is agreed the thing isn’t actually there, which the two can certainly differ on.

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