Bench Memos

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Previewing the Left’s Attacks on the Supreme Court


Supreme Court watchers are coalescing around the conclusion that the Court will strike down at least part of Obamacare. In response, the Left has started to preview its attacks on the Supreme Court if this emerging conventional wisdom holds. Two myths in particular are worth exposing.

Myth 1: The Supreme Court can only maintain its reputation by upholding Obamacare.

Juan Williams promoted this myth on Monday, citing polling data to claim that “a 5–4 defeat of the healthcare law will erode trust in the justice system.” In concluding that “there is fertile political ground to be plowed in lashing out against the right-wing activism of the Roberts Court,” Mr. Williams appears to believe the Supreme Court can only avoid this disaster by upholding Obamacare.

This myth ignores that some of the Court’s most controversial opinions were not 5–4 decisions. For example, Roe v. Wade is one of the most controversial opinions of the Court’s history, and it was decided on 7–2 lines. As Carrie Severino mentioned during her NPR appearance, “this shows that it’s not all about just the vote count. It’s about the public perception of whether the court is really being political or is actually deciding based on the law.”

Even if one could allocate blame amongst the justices for a 5–4 decision, this myth wrongly exempts the Left from having to avoid judicial politicization. If Mr. Williams believes that Justice Roberts and Justice Kennedy have a duty to uphold simply to avoid a 5–4 decision, why wouldn’t Justices Sotomayor and Kagan have a similar duty to strike down the law? And as I have already pointed out, the Court’s liberal wing was very active during the oral arguments, even making Jeffrey Toobin note that “all four liberal justices tried as hard as they could to make the arguments in favor of the law.”

I don’t think the polling data supports Mr. Williams’s conclusion. For more on that debate, see hereherehere, and here. But, the Supreme Court’s duty is to the Constitution, not to public-opinion polls, and much more is at stake than variations in polling data. Unanimity might be a noble goal in certain situations, but ensuring the maintenance of our constitutional system of limited federal powers is much more important.

Myth 2: Striking down Obamacare would be judicial activism.

This argument takes many forms, but usually describes judicial activism as what happens when the Supreme Court strikes down legislation. President Obama explained last month that he was “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.” This appears to be a favorite talking point, as Democrat Congressman Gerry Connolly echoed it yesterday in Politico.

This claim is so outlandish that it invoked the wrath of Fifth Circuit Appellate judge Jerry Smith. The president’s pontificating prompted Judge Smith to make sure that the president’s DOJ lawyers affirmed judicial review. Judicial review, of course, is the doctrine that allows courts to review a law’s constitutionality, an idea hasn’t merited a challenge since our country’s early history. 

Any student of constitutional law knows that opposing judicial activism does not require deferral to Congress. (although in fairness to the president he never taught it in his class). As the Senate Republican Policy Committee pointed out last week, the Supreme Court has invalidated at least 169 acts of Congress.

Senator Lee explained it this way a few weeks ago:

. . . [A court is not] activist just because it enforces the Constitution’s structural limits on federal power . . . [The Supreme Court’s] not acting to invalidate an unconstitutional law is every bit as . . . repugnant to the rule of law and the Constitution, as . . . [is invalidating] a law that is entirely justified on a constitutional basis.

The Supreme Court has a duty to enforce the Constitution’s limitations through exercising judicial review.  Here, that means striking down Obamacare, cries of judicial activism notwithstanding. 


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