My Bench Memos colleagues have offered their predictions regarding potential outcomes in the Obamacare case, and I will now take the sure “bet”: whatever the Court decides, it will be attacked for committing the sin of “judicial activism” by those critical of the outcome.
As I stated on Bench Memos in April when the President lectured the Supreme Court that striking down the law would be a good example of judicial activism, and I explain in an op-ed today, these claims frequently arise from a mistaken understanding of “judicial activism.”
And so, I offer a reader’s guide to determining whether the inevitable claims of judicial activism are valid. When the decision comes down tomorrow in Obamacare, or for that matter in any case, remember that “judicial activism” doesn’t mean that a popularly enacted law was ruled unconstitutional — that by itself is judicial review. And it doesn’t mean that the outcome is bad policy or is a policy outcome with which the speaker disagrees. It properly means that the judge failed to rule based upon the text and original public meaning of the law, and instead ruled based upon subjective policy preferences.
What does this say about the Obamacare challenge? In my article today, I note that the Constitution’s text and original public meaning doesn’t support the law, and even the Supreme Court’s prior, expansive interpretations of the Commerce Clause do not vindicate the claim of congressional authority in this case. No, to accept Obamacare, “the Court will need to force the evolution of the Commerce Clause further” to meet policy objectives. And that would be a good example of judicial activism.