Bench Memos

Obama’s “Shallow Sloganeering”

Speaking of law professor Michael Stokes Paulsen: Paulsen also has a fine Public Discourse essay today—“The Unprecedented, Extraordinary, Anti-democratic, Activist Power of Judicial Review”—that takes President Obama to task for his “vacuous quips” about the Obamacare case. I’ll highlight a few passages.

On what “judicial activism” is:

In its simplest sense, judicial activism is judicial decision-making contrary to true legal authority. In colloquial terms, it occurs when courts “make up” law without authority to do so: when they invent rights not supported by the text of the Constitution, invent powers not justified by the document’s language and logic, invent jurisdiction or remedies not warranted by law, or otherwise refuse to enforce laws as enacted.

On what he and I both call “judicial passivism” (that is, when judicial deference moves beyond sound judicial restraint into the realm of judicial abdication):

Judicial activism has a flipside, which might be called “judicial passivism”: judicial decision contrary to law in the form of refusal to act in accordance with judicial obligation; allowing unconstitutional exercises of authority; declining to intervene to correct lawless action; unduly deferring to political authorities, when such deference is unwarranted; or adhering to a past precedent even when fully convinced it was wrongly decided.… When courts accede to violations by other branches of government, or perpetuate their own past errors, they commit an error that is simply the mirror-image of judicial activism.

On what “judicial review” is, where it comes from, and how it differs from “judicial supremacy”:

What we call “judicial review” is really nothing more than the independent power of constitutional interpretation by courts, acting in the course of their ordinary duties of applying the law to decide actual cases. As such, it is a straightforward inference from the separation and co-equal authority of the branches, combined with the supremacy of the Constitution over other law. (Judicial review, a sound doctrine, should not be confused with judicial supremacy, the unsound assertion that whatever the judiciary says binds the other independent branches, no matter how wrong its decision might be. That claim, though often made, is itself contrary to the independence and co-equal authority of the several branches and the supremacy of the Constitution.)

Paulsen also offers some provocative speculation on why Obama made his comments.

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