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.