The Corner

Dana Milbank on Judicial Activism

Dana Milbank wants the Supreme Court to go along with the Obama administration’s rewriting of the Obamacare law by redefining the term “judicial activism.” It is, admittedly, a term that has been used in different ways. Some people use it to describe decisions that overturn well-established precedents; some to refer to decisions that depart from the text and original understanding of the Constitution; some to apply when courts strike down too many laws. Milbank’s article is the first I’ve seen that suggests it’s deplorable activism whenever a court makes a decision that would have large consequences. He doesn’t state this argument directly, which is probably a wise choice.

Obama’s appeal to the [five relatively conservative] justices, devotees of judicial modesty all: Do they really wish to cause the massive societal upheaval that would come from killing a law that is now a routine part of American life? . . .

[I]t’s difficult to imagine the Supreme Court justices taking away health coverage for 6 million or 7 million Americans, causing costs to skyrocket for millions of others, and likely plunging the entire American health-care system into chaos. That’s not just judicial activism — it would be a judicially induced cataclysm.

Of course the Court can’t be sure what the consequences of a decision for the plaintiffs would be. There might even be adverse consequences from the opposite decision, particularly if it established the idea that sufficiently far-reaching lawbreaking by the executive branch creates facts on the ground that courts will be too afraid to disturb. 

Ramesh Ponnuru is a senior editor for National Review, a columnist for Bloomberg Opinion, a visiting fellow at the American Enterprise Institute, and a senior fellow at the National Review Institute.

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