The Left Suddenly Uncomfortable with Concept of Judicial Review
Don has covered President Obama’s not too subtle threat to the Court that it not dare strike down all or even part of Obamacare. Yesterday he somewhat toned down his remarks, but still managed to step in it.
At an appearance this afternoon, a reporter asked Obama a question following up on yesterday’s comments: “Mr. President, you said yesterday that it would be ‘unprecedented’ for a Supreme Court to overturn laws passed by an elected Congress. But that is exactly what the court’s done during its entire existence. If the court were to overturn the individual mandate, what would you do, or propose to do, for the 30 million people who wouldn’t have health care after that ruling?”
Obama’s answer to the question was that he expects to win in court, and “as a consequence, we’re not spending a whole bunch of time planning for contingencies.” He went on to talk at some length about the “human element”–that is, people who would supposedly suffer in the absence of ObamaCare. Message: Obama cares, though not enough to spend “a whole bunch of time planning for contingencies.”
But the most interesting part of his answer was the beginning, in which he tried to walk back, or at least clarify, his statement from yesterday. He spoke slowly, with long pauses, giving the sense that he was speaking with great thought and precision: “Well, first of all, let me be very specific. Um [pause], we have not seen a court overturn [pause] a [pause] law that was passed [pause] by Congress on [pause] a [pause] economic issue, like health care, that I think most people would clearly consider commerce. A law like that has not been overturned [pause] at least since Lochner,right? So we’re going back to the ’30s, pre-New Deal.”
As James Taranto points out, this response is wrong on multiple levels. The case that Obama cites in fact pre-dates the New Deal by a good thirty year. Second, the full title of the case – Lochner vs. New York – tells us that this was a case involving state law, not federal legislation. As Taranto further explains, there have been plenty of Supreme Court cases in which the high court struck down state laws, some dealing with economic matters. And there of course have been plenty of cases where the Court has in fact declared federal statutes unconstitutional. In fact two cases in the late 90s – US v. Lopez and US v. Morrison – directly implicated the commerce clause, and in both cases the Court rendered a 5-4 decision overturning acts of Congress which relied upon the commerce clause for their justification.
But other than that, I guess Obama was spot on.
The broader issue, other than Obama’s seeming ignorance of constitutional law, is that the left has suddenly decided that they don’t much care for this concept of judicial review. It’s funny that they have had such a collective change of heart after relying on the Courts for decades to implement social and economic policies that popular and legislative majorities routinely refused to endorse. Now that there is a real threat that the Supreme Court could strike down all or part of one of the Democratic party’s most important legislative victories, the Court has become a symbol of all that is wrong with America. Venerable constitutional scholar Maureen Dowd expresses her frustration today:
This court, cosseted behind white marble pillars, out of reach of TV, accountable to no one once they give the last word, is well on its way to becoming one of the most divisive in modern American history.
It has squandered even the semi-illusion that it is the unbiased, honest guardian of the Constitution. It is run by hacks dressed up in black robes.
All the fancy diplomas of the conservative majority cannot disguise the fact that its reasoning on the most important decisions affecting Americans seems shaped more by a political handbook than a legal brief.
Dowd completely eviscerates the Supreme Court’s reasoning in a series of cases where it completely over-reached, carefully laying out reasons why the Court acted wrongly and why the questions posed during the hearings last week were faulty.
Okay, I’m a few days late for April fools, but Dowd does none of that. She just screeches about the usual litany of Supreme Court cases that liberals always complain about (Bush v. Gore, Citizens United), conveniently ignoring all of the cases in which the Court ignored the Constitution in order to invalidate state laws.
After stumbling and bumbling through one of the most horribly written and unfocused print columns I have ever seen, Dowd ends by saying:
But it isn’t conservative to overturn a major law passed by Congress in the middle of an election.
So evidently it is not within the province of the Court to strike down legislation if we’re in election season. Can the Court only decide significant cases in non-election years? I guess Dowd must hold up Roger Taney as the model of Supreme Court reticence. After all, he did not release his Dred Scott opinion until after the 1856 election, and by doing so helped ensure that the Democrats did not lose said election. Ah, if only we had more jurists as noble as Roger Taney.
Whatever the case, it’s odd that Dowd has now seen the light on judicial activism. After all, it wasn’t that long ago that Dowd mocked Antonin Scalia for having the temerity to dissent in the case of Lawrence v. Texas. Relying as usual on her laser-like precision with matters relating to the constitution, she told “Nino’ that he should “loosen up.” And neither Dowd, nor Barack Obama for that matter, seemed too upset when the Supreme Court handed down its decision in Massachusetts vs. EPA in which it ruled that EPA must regulate carbon emissions. Speaking of Massachusetts, again, neither said a peep against a Massachusetts state court ignoring the Massachusetts state constitution in order to declare gay marriage to be an inalienable right, completely bypassing the state legislature. And of course we don’t hear too many people on the left griping about judicial activism with regards to abortion and contraception.
What’s sad is that Obama and Dowd are not completely wrong to at least question the legitimacy of judicial activism in certain respects. It has become accepted as a matter of fact that the Supreme Court (and the judiciary in general) ought to be the final authority on all constitutional matters. As I wrote about several years back, a Washington Post editorial suggested that only the Supreme Court had any say in constitutional matters. In an editorial about Congress’ refusal to grant voting rights to DC, the Post said:
No doubt there are strong arguments on both sides of the constitutional question; scholars of renown are divided. But the way to resolve the question is in court. That’s why the bill included a provision for expedited review to the Supreme Court. The opponents’ unwillingness to go to the court suggests they weren’t all that confident in their constitutional argument.
Such logic is not confined merely to the Post. This highlights one of the fundamental problems with the left and how it has viewed the Court. For years, not only did they express no reservations about judicial review, but to them the courts were the only legitimate venue for constitutional decision-making. Congress need not worry their collective little heads over such weighty matters. Even Republicans have expressed similar feelings. When Bush signed McCain-Feingold he all but said that he felt that the law was unconstitutional. But instead of utilizing his veto pen*, Bush let the Supreme Court decide. And of course it did, upholding most of the bill initially, though finally showing some backbone in the one case that the left has decided to harp upon as a case of raw judicial usurpation of power.
*: A completely legitimate use of the veto, by the way, and in fact for the first 60 years of the republic presidents only used the veto pen because of concerns with the unconstitutionality of legislation, not because of policy disagreements.
In the case that established the case for judicial review, Chief Justice John Marshall himself never declared that the Supreme Court was the sole arbiter of constitutionality. He made clear that the Court was an arbiter, but they were one of three branches in the federal government, and all three had the ability to discern the constitutionality of legislation. Yet for years almost all on the left, and a fair number on the right, seemed to think that the judiciary was the only branch of government that need decide whether or not laws were constitutional.
So now the left is taking a polar opposite stance. Suddenly the concept of judicial review itself is under attack. Now that the Court has a majority of Justices who don’t view the Constitution as some permeable plaything, we have to rethink 200 years of our republic’s history.