President Obama Misses the Mark on Judicial Review
Obama launched an attack on the Court just days after the Obamacare arguments finished. Here is what he said:
Ultimately, 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.
After criticism, he walked back his comments with this:
We have not seen a Court overturn a law that was passed by Congress on an economic issue, like health care, that I think most people would clearly consider commerce -- a law like that has not been overturned at least since Lochner. The Supreme Court is the final say on our Constitution and our laws, and all of us have to respect it, but it's precisely because of that extraordinary power that the Court has traditionally exercised significant restraint and deference to our duly elected legislature, our Congress.
In this week's edition of National Review (available here at the AEI website), I argue that President Obama's claim that opponents of judicial activism should support Obamacare shows how deeply he misunderstands judicial review. Not only is Obama inconsistent (he has previously praised cases where the Court has struck down federal law), and misrepresents the facts (Obamacare was not passed by strong majorities), and gets the history wrong (Lochner did not involve a federal law), but he reveals his deeply flawed understanding of judicial review. Judicial review is not final because the Supreme Court in infallible. Judicial review means simply that the other branches of government cannot force the Court to enforce a law that it thinks is unconstitutional, just as the Court cannot force the President or Congress to exercise their powers in a way that they think is unconstitutional. This piece explains further the true grounding of judicial review and why Obama simply misses the mark.
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Dec '11
Re: President Obama Misses the Mark on Judicial Review
Not to be pessimistic, but aren't we reading a bit too much into oral arguments? I haven't followed Supreme Court cases that much, so please forgive my ignorance. Do oral arguments such as these really give us a good idea of how the justices will decide?
Dec '10
Re: President Obama Misses the Mark on Judicial Review
John Yoo: ...
After criticism, he walked back his comments with this:
...
Ya' gotta love the chutzpah. Yes, the people were feeling so deferential toward our duly elected Congress that we unelected a whole slew of them in 2010 because of Obamacare.
Do you suppose this will factor in to the Court's decision at all? I'm sure it's not supposed to, but if someone is on the fence (Kennedy), might it push him our direction?
Dec '10
Re: President Obama Misses the Mark on Judicial Review
John,
I have repeated often a phrase of my own invention, "There is no such thing as quota-based affirmative Truth". This is the factor we are watching on a grand scale. The law takes brains. The law takes work. The law takes integrity. Forty years of quota-based affirmative truth have dumbed down this society. The Obamites most exemplify this.
The idea that they must make a tightly reasoned defense of their law to win the Court over is totally foriegn to them. They actually expect business as usual in front of the Court. All they need do is craft a cheap play of emotion broadly thrown out to a banal crowd. I think they are truly shocked that they can't get away with it at the Court.
Obama's first reaction was his real thought. He, like a spoiled small child being told "No, you can't have the second large candy bar for dinner" took a wild shot at the Court. His words the next day had been heavily coached to make him look intelligent and rational. Neither of which he actually is.
It's been a long time coming.
Regards,
Jim
Edited on April 27, 2012 at 3:15amMay '10
Re: President Obama Misses the Mark on Judicial Review
If the court doesn't stand up to naked executive mob-pandering here, then we no longer have a constitutional government. Those nine justices are all we have between us and the mobocracy as defined by this Chicago thug-in-constitutional-lecturer's clothing.
I hope they are up to the challenge.
Re: President Obama Misses the Mark on Judicial Review
Not only is Obama inconsistent . . . and misrepresents the facts . . . and gets the history wrong . . . but
That, ladies and gentlemen, is how you set up your main accusation. Nicely done, John.
Of course, he can’t be inconsistent, because his keen mind grasps all possibilities and synthesizes them into a brilliant new alloy. He cannot misrepresent the facts; it only appears so to lesser minds who do not see how he has grasped the essential truth of the facts and repositioned them to serve justice. He cannot get history wrong, because history is subjective, useful as a source only when it offers up the proper narrative.
He’s the perfect progressive. I’d say “if Barack Obama didn’t exist they’d have to invent him,” but I think they did.
Nov '10
Re: President Obama Misses the Mark on Judicial Review
What's to stop Boehner from tabling a bill to repeal Obamacare while the court considers the arguments? Yes I know such a bill hasn't a chance of passing in the Senate, but if the House even debates such a bill, would it not take the wind out of this nonsense about "deference to a bill passed by a strong majority ... in Congress". Unless I'm wrong here, inaction by the House right now is strengthening Obama's hand in all of this.
Edited on April 27, 2012 at 7:48amFeb '12
Re: President Obama Misses the Mark on Judicial Review
Obamacare passed 219-212 with not one Republican vote, what our President calls a strong majority. You are kind calling such statements misreprentations, I call such statements lies. Our leader also appears to have no problem calling this bill just commerce related. The justices are looking at it in the proper light; that is the the relation ship that this bill creates between the government and the free citizens of this country who's liberty will be impinged. This is not an issue of commerce but an issue of liberty.
Oct '10
Re: President Obama Misses the Mark on Judicial Review
I have a different take on this. I think Obama hired an incompetent defense team deliberately. ObamaCare is a very unpopular law--the left dislikes it because it isn't a single-payer system, and the right doesn't like it because of how it was passed, over-regulation, the individual mandate, etc.
I suspect he also hopes the court will block any future center-right health reform, creating a precedent that virtually mandates single-payer healthcare. That could very well happen.
May '11
Re: President Obama Misses the Mark on Judicial Review
As a tactical matter, speaking as an attorney, it does not strike me as a very sensible approach to launch a public attack on the court that is considering your case while they are considering it. This is what many lawyers refer to as the "only an idiot" argument. At its core, Obama's argument is, "Only an idiot would even consider overturning this law." Some judges actually don't appreciate being called an idiot. Just sayin'...
Oct '10
Re: President Obama Misses the Mark on Judicial Review
I think we should feel sorry for the Solicitor General because I think Obama is hurting his career by making him sound foolish before the Court. He should be proud to be in that job and this must be such a let down.
Mar '11
Re: President Obama Misses the Mark on Judicial Review
I'm beginning to believe Obama acquired his law degree in a box of Cracker Jacks. Exactly what kind of constitutional law did he teach at the University of Chicago?
Mar '12
Re: President Obama Misses the Mark on Judicial Review
James Gawron: John,
I have repeated often a phrase of my own invention, "There is no such thing as quota-based affirmative Truth". This is the factor we are watching on a grand scale. The law takes brains. The law takes work. The law takes integrity. Forty years of quota-based affirmative truth have dumbed down this society.
Edited 14 hours ago
I second James Gawron's sentiments. Obama's initial statement on the Supreme Court review of Obamacare showed a level of ignorance about the US Supreme Court's constitutional role and history that would be laughable coming from a non-lawyer President. Coming from a Harvard Law "magna cum laude" graduate, president of the Harvard Law Review and U of Chicago constitutional law instructor, it is utterly inexplicable, except by reference to affirmative action practiced on a staggering scale. As John Yoo rightly remarks, Obama's views of judicial review if given on a final exam " would have earned him a failing grade at the University of Chicago Law School, where he taught, and Harvard Law School, where he studied."
Jul '10
Re: President Obama Misses the Mark on Judicial Review
The kind that doesn't exist, apparently. Yet.
Feb '12
Re: President Obama Misses the Mark on Judicial Review
I second Robert Mitchell's comments. Especially good are his words "
utterly inexplicable, except by reference to affirmative action practiced on a staggering scale".
Oct '10
Re: President Obama Misses the Mark on Judicial Review
utterly inexplicable, except by reference to affirmative action practiced on a staggering scale". · 1 hour ago
Again, I don't think the administration wants ObamaCare to survive; it would take away a big issue we would've run on in the election. There's also an ideological interest in striking it down. The Court will not strike down the left parts of the law, they will strike down the center-right bits. Even worse, they may create a precedent that will tank any future center-right health reform.
[edit: On second thought, and in consultation with a certain right-wing Democrat we all know and love, I think Obama just made an honest rookie mistake. Probably no conspiracy here.]
Edited on April 28, 2012 at 11:56pm