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Bench Memos

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The Left and Judicial Activism



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The Court today issued a narrowly divided opinion holding that states cannot mandate life without parole for juveniles. As Ed Whelan noted, “The Court’s ruling — majority opinion by Justice Kagan, joined by Kennedy, Ginsburg, Breyer, and Sotomayor — invalidated contrary aspects of sentencing regimes established by 28 States and the federal government.” In another high profile case, the Court invalidated most of an Arizona immigration law.  

In both cases, the Court used its power to supersede the democratic process and reach a “liberal” outcome. Keep that in mind this Thursday, when the Supreme Court issues its opinion in the Obamacare case.  

Needless to say, it is possible that the Court will issue a narrowly divided opinion in which the majority strikes all or some of Obamacare. If that occurs, it is virtually certain that President Obama will use his bully pulpit to attack the Court. As a former Obama aide told Ryan Lizza:

Whether the Supreme Court overturns the [Obamacare] law in part or in full, the White House will need to respond publicly. “The strategy is to just go on the offensive and say, ‘Look at Citizens United, look at the health-care decision, look at Bush v. Gore,” the former aide said. “We have an out-of-control activist court, and Romney will make it worse. That’s Plan A. Plan B is nothing.”

President Obama himself provided us with a preview of the Court-bashing strategy when he announced that he was “confident the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law [Obamacare] that was passed by a strong majority of a democratically-elected congress.”  He went on:

[F]or years we have heard 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 am pretty confident that this Court will recognize that and not take that step. 

So, to borrow Jeff Rosen’s terms, I suppose today was the Left’s moment of truth.  Perhaps tomorrow the New York Times will editorialize about the unfortunate fact that today such narrow majorities so casually cast aside the will of the people.  Or perhaps, during his big press conference after the Obamacare ruling, President Obama will acknowledge that his recent appreciation for “judicial restraint” is limited to federal laws that he signed.  



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