Obama Lectures the Supreme Court . . . And Bench Memos

by Robert Alt

Not content with lecturing the Supreme Court about cases that they have already decided, the President has opted to up the ante and is now lecturing the justices about pending cases. 

Speaking at a news conference, President Obama opined about the challenge to ObamaCare: “Ultimately, I am 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[.]”

Really?  A strong majority?  At least President Clinton just misled the American people about things that weren’t in the Congressional Record, like interns.  But let’s give the President the benefit of the doubt . . . maybe he got his adjectives confused.  Maybe he meant a partisan majority.  Or a bare majority.  Or a majority-so-paper-thin-that-Democrats-had-to-ram-the-bill-through-without-even-reading-it-on-a-party-line-vote-using-gimmicks-because-it-was-so-wildly-unpopular-that-it-led-Massachusetts-to-elect-a-Republican-Senator-who-campaigned-on-voting-against-the-bill.  Yeah, I’m sure that’s what he meant.

But the President wasn’t done: “And I’d just remind conservative commentators that, for years, what we have 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.”

It’s not bad enough that the President is lecturing the Supreme Court, but now he is lecturing me as well?  But of course judicial activism is not striking down any democratically, or in this case, Democratically enacted law.  If judicial activism simply meant striking down any law passed by a legislature, then Congress could pass a law infringing upon the freedom of speech, and the President could label the Supreme Court “activist” if they did what the Constitution required by striking down the law.  Oh wait, that’s what happened in the Citizens United case. 

No, as I have explained before, judicial activism occurs when judges write subjective policy preferences into their legal decisions rather than apply the constitutional or statutory provisions according to their original meaning or plain text.  Judicial activism may be either liberal or conservative; it is not a function of outcomes, but one of interpretation. Judicial activism does not necessarily involve striking down laws, but may occur when a judge applies his or her own policy preferences to uphold a statute or other government action which is clearly forbidden by the Constitution.  (My Bench Memos colleague Ed Whelan refers to this as judicial passivism, but we both agree that it is serious error.) 

But the President was really just predicting, not lecturing the Court you say?  Well, the President cleared that up as well: “I think the justices should understand that in the absence of an individual mandate, you cannot have a mechanism to ensure that people with preexisting conditions can actually get health care.” Putting to one side the fact that this isn’t true, maybe the President could leave that whole making-arguments-to-the-Court-thing to the Solicitor General. O.K., so that didn’t work out so well for him, either. (Perhaps–just perhaps–ending with a soliloquy about “liberty” was not the strongest move in a case where you are trying, as the government, to force citizens to buy a product.)

The President’s recent news conference suggests that he didn’t learn from the last time he wagged his finger at the Court.  While everyone paid attention to Justice Alito mouthing “not true” at the State of the Union address in which the President criticized Citizens United, fewer commentators paid attention to Justice Kennedy.  But it was Justice Kennedy who authored Citizens United, and it is Justice Kennedy who, not long after the President’s State of the Union lecture, was reported as saying that he wasn’t looking to retire any time soon, thank you very much.   And it is Justice Kennedy who, during oral arguments in the ObamaCare case, asked questions about whether it wouldn’t be a more extreme exercise of judicial power for the Court to re-write the statute by picking-and-choosing provisions to strike down if the mandate is found unconstitutional rather than simply striking the whole thing down. 

A federal judge once told me the first rule of effective advocacy, “Don’t offend the mind you seek to persuade.”  The President may well have offended Justice Kennedy with his unseemly rebuke of the Supreme Court at the State of the Union. And by offering exaggerated political claims and making arguments directed to the justices about a case currently before the Court, he may have offended other justices as well.

Bench Memos

NRO’s home for judicial news and analysis.