Re: Whatever You Think of Obamacare . . .

by Ed Whelan

The Institute for Justice’s Robert McNamara and I evidently are living in very different judicial worlds. As I understand his post, McNamara claims that everyone should celebrate last Friday’s decision striking down Obamacare’s individual mandate whether or not that decision is right. Decades after the Warren Court’s massive expansions of judicial power, he apparently imagines that all those timid judges out there need encouragement to “assert [their] authority against the other branches of government.” So we all ought to applaud judicial decisions striking down legislative enactments, even if they’re wrong.

I, by contrast, believe that the Eleventh Circuit’s decision deserves to be celebrated if and only if it is right. (My sympathies are very much with such a conclusion, but I haven’t read the decision or studied the relevant authorities.) A judicial decision that correctly invalidates a legislative enactment vindicates constitutional rights or limits on governmental power. But a judicial decision that wrongly invalidates a legislative enactment usurps the realm of representative government. McNamara’s myopic focus on the need for a “robust judicial system” simply ignores, and thereby devalues, the principles of representative government that are at the core of our Constitution.

Relatedly, McNamara calls “judicial activism” a “meaningless … slur” and touts the far emptier term “judicial engagement.” I’ll refer the reader to my response to a similar criticism by one of McNamara’s colleagues and to my more extended defense of the term “judicial activism.”