President Obama was once a lecturer on constitutional law, but he appears to be a little rusty. Most of what he has said recently about the Supreme Court case challenging the constitutionality of the health-care law he signed has been ill-informed.
Asked about the matter at a press conference on April 2, he responded that he was confident the Court would uphold the law: “And the reason is because, in accordance with precedent out there, it’s constitutional.” Actually, there isn’t any precedent for the Court to examine on the question of whether the federal government can order Americans to buy health insurance. There are plenty of cases, from the New Deal onward, in which the Court has said the federal government has broad leeway in regulating commerce among the states. Wickardv.Filburn, for example, is a canonical 1942 case in which the Court held that Congress may regulate even intrastate economic activity because of its interstate effects. But the oral argument did not dwell much on such cases, because they do not offer much guidance for the Court in the Obamacare case.
A few sentences later, Obama added, “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.” As many commentators pointed out, this was doubly wrong. The Court has often overturned laws passed by large majorities of Congress, and Obamacare passed narrowly.
Finally, Obama came to his most cutting remark. “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.” Now this comment, too, is clearly mistaken. Conservatives have never maintained that it is always wrong for unelected justices to “overturn a duly constituted and passed law,” and to suggest that this purported view of ours might be sensible is to cast doubt on the legitimacy of a core judicial function.
Obama drew enough criticism for these remarks that he retreated the next day to his false claim about “well-established precedents.” If the Court does strike down Obamacare in part or in full, we will hear more about those precedents — and about how the Court has threatened the post–New Deal welfare state — as well as about conservative hypocrisy on judicial activism.
So it’s worth restating a few points about judicial conservatism, especially since people as ostensibly well informed about constitutional controversies as the president seem unfamiliar with the basics. The first is that the accusation of judicial activism presupposes a baseline of what constitutes constitutional fidelity. In the paradigmatic case of the term’s usage, a judge is accused of departing from this baseline in order to strike down a law that is compatible with the Constitution but that the judge opposes because it offends his sense of justice or sound public policy.