Magazine | April 30, 2012, Issue

On Judicial Review

President Obama seems to understand it poorly

It’s a good thing that President Barack Obama was not writing his law-school exams when he attacked judicial review. The administration is reeling from the Supreme Court’s tough questioning of its signature legislative achievement, the Patient Protection and Affordable Care Act. Rather than await the decision, as past presidents have done when facing high-court scrutiny, Obama decided to attack preemptively with error-filled claims about the place of judicial review in our constitutional system — claims that would have earned him a failing grade at the University of Chicago Law School, where he taught, and Harvard Law School, where he studied.

Perhaps the president’s overreaction comes from a hubris stung by an approaching fall. Just a few weeks ago, liberals were triumphantly predicting that the vision of an unbounded federal government would seduce all. Chief Justice John Roberts would not risk the Court’s prestige by stopping President Obama’s greatest political success. Antonin Scalia would follow his earlier vote in Gonzales v. Raich (2005), in which he agreed that Congress could use its Commerce Clause powers to ban the personal growth and use of minuscule amounts of marijuana.  Anthony Kennedy, so sensitive to his position as the swing vote and conscious of public opinion (which he had trumpeted in his 1992 vote to reaffirm Roe v. Wade), would never put himself in the unpopular position of blocking economic regulation. Only Clarence Thomas, who ungrudgingly opposes the New Deal state, and perhaps Samuel Alito might stand against the latest effort at federal social engineering.

But the Court’s oral arguments have thrown liberals into a panic. Kennedy declared that compelling purchases of a product (rather than regulating existing commerce) “is different from what we have in previous cases, and that changes the relationship of the federal govrnment to the individual in the very fundamental way.” Scalia questioned whether the administration’s claim that Congress’s Commerce Clause power allowed it to require nationwide health insurance also meant that the government could force everyone to eat broccoli. Obama’s solicitor general could not answer the question that every law student knew was coming: What is the Commerce Clause’s stopping point? Based on the tea leaves, the odds have switched to slightly favoring the law’s challengers.

President Obama’s reaction was to go on the offensive. “Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress,” he said on April 2. “And I’d just remind conservative commentators that for years what we’ve heard is, 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.”

This is not the first time that President Obama has attacked the Court: Recall his 2010 State of the Union criticism of the justices (several of whom were sitting in attendance) for striking down caps on corporate campaign contributions in Citizens United v. FEC. Then, just as in his recent comments, Obama blunted his already clumsy rhetoric by making serious mistakes of constitutional law. It simply would not be “unprecedented” or “extraordinary” for the Court to strike down a federal law. The justices have exercised that power since 1803’s Marbury v. Madison, in which the Court dismissed the case of a wannabe justice of the peace who sued to receive his commission of office, despite a statute giving the Court jurisdiction over such claims.

It is also simply wrong to assert that, in overturning Obamacare, the “unelected group of people” would be overturning a law passed by a “strong majority.” Obamacare barely squeaked through Congress thanks to questionable parliamentary maneuvers (budget reconciliation was used to avoid a filibuster). In any case, Marbury struck down a section of the Judiciary Act of 1789, which had passed the House on a voice vote and the Senate by two-thirds; Congress that year boasted many members of the federal and state conventions that had just ratified the Constitution.

#page#Nor did Candidate Obama similarly criticize the Court when, in Boumediene v. Bush (2008), it struck down the Military Commissions Act’s reaffirmation that enemy prisoners at Guantanamo Bay had no right to seek habeas corpus from civilian courts during wartime. In fact, he had nothing but praise for the Court’s rejection of a law that had passed 65–34 in the Senate and 253–168 in the House.

Obama further damaged his constitutional-law credentials in an April 3 walkback. “We have not seen a Court overturn a law that was passed by Congress on an economic issue, like health care, that I think most people would clearly consider commerce — a law like that has not been overturned at least since Lochner,” he said. “The Supreme Court is the final say on our Constitution and our laws, and all of us have to respect it, but it’s precisely because of that extraordinary power that the Court has traditionally exercised significant restraint and deference to our duly elected legislature, our Congress.”

This invocation of the Lochner case missed the mark. Lochner (1905) did not involve Congress’s powers, but instead a New York State law imposing maximum hours of work and violating the constitutional right to contract. In fact, during the fight between the justices and the Franklin D. Roosevelt administration, the Court struck down several New Deal statutes, such as the National Industrial Recovery Act, as beyond Congress’s powers. It is true that the Court’s review of economic legislation remained dormant for many decades after, but the Rehnquist Court resurrected it in United States v. Lopez (1995), Printz v. United States (1997), and Morrison v. United States (2000).

Disappointed in decisions such as Roe v. Wade, leading conservative lights such as Judge Robert Bork have suggested that judicial review itself borders on the illegitimate. But they should not make common cause with President Obama. While the constitutional text nowhere mentions it, judicial review can trace its origins directly to the constitutional structure. The Constitution represents a contract between the principals (the American people) and their agents (the federal government). Each branch owes its ultimate responsibility to the people, not to the legislature, and must follow its own understanding of the Constitution. No branch, therefore, can force another to cooperate in an unconstitutional action.

Judicial review springs from the duty of a court, when deciding a case before it, to enforce the Constitution over a conflicting act of Congress. A court must follow the former, because it is the highest form of law. “No legislative act therefore contrary to the constitution can be valid,” Alexander Hamilton explained in Federalist 78. “To deny this would be to affirm that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.” Hamilton concluded: “The constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.”

This modest vision of judicial review, borrowed by Chief Justice John Marshall in Marbury v. Madison, should lead conservatives to reject judicial supremacy. Contrary to Obama’s statement, the Supreme Court does not get “the final say” on the Constitution. It interprets the Constitution only when deciding cases. Its precedents do not bind the other branches when they conduct their own duties, such as passing legislation or enforcing the law. Thomas Jefferson, for example, pardoned anyone convicted under the Sedition Act for criticizing the government and suspended all prosecutions — even though the courts had upheld the act. “You seem to think it devolved on the judges to decide on the validity of the sedition law,” he later explained to Abigail Adams. “But nothing in the Constitution has given them a right to decide for the Executive, more than to the Executive to decide for them.”

#page#Other great American presidents used executive power to advance their constitutional visions. Andrew Jackson waged a bitter struggle against the Second Bank of the United States throughout his first term in office. In 1832, he vetoed the bank’s re-charter, even though the Supreme Court had upheld the bank in McCulloch v. Maryland (1819). “The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges,” Jackson declared. And, he emphasized, “on that point the President is independent of both.”

Abraham Lincoln reached the pinnacle of executive vigor in constitutional interpretation. His party defined its existence through opposition to Dred Scott v. Sandford, which struck down congressional limits on the spread of slavery. In his debates with Stephen Douglas, Lincoln argued that the president and Congress could refuse to follow Dred Scott in other cases of runaway or free slaves. He continued his narrow approach to judicial review once president. “If the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court,” Lincoln argued, “the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.” By issuing the Emancipation Proclamation, Lincoln went even further under his commander-in-chief power to upset Dred Scott’s holding that slaves were mere property.

Obama has decided to cede supremacy to the Supreme Court. Conservatives should not follow him. Under the proud tradition of coordinate constitutional interpretation, conservatives could refuse to accept any decision upholding Obamacare and seek its repeal by the president and Congress. Obama not only denies centuries of presidential leadership, he also funnels opposition to the Court into the kind of boorish threats launched by the White House and its supporters against judicial independence. If Obama is unwilling to oppose the Court by using alternative powers — such as enacting national health-care legislation through Congress’s taxing and spending powers — then he is reduced to attacking the justices in the hopes of changing their minds.

In this respect, Obama’s assault calls to mind nothing less than Franklin Roosevelt’s war on the courts. Frustrated with judicial resistance to the New Deal, FDR used his stunning 1936 reelection to advance a court-packing plan. Because, he claimed, the advanced age of the justices prevented them from coming to grips with the modern economy, Congress ought to allow him to appoint a new justice for every sitting justice over 70 — which would have expanded the Supreme Court from nine to 15 judges. Under the pressure of the plan, it is commonly thought, the Court’s majority made “a switch in time that saved nine”: It began to uphold New Deal legislation, such as the National Labor Relations Act and minimum-wage laws.

But those who would embark on such political campaigns against the Court would do well to study the aftermath of FDR’s scheme. The Court and constitutional law suffered. The Court’s obvious flip-flop has deprived the New Deal state of the level of legitimacy that attended the Framing and Reconstruction, and thus led to the very constitutional challenges that beset Obamacare today. FDR also paid a political price. In the 1938 elections, his wing of the Democratic party suffered a resounding defeat and the New Deal effectively stalled. Were it not for his rise to the challenge of World War II, FDR might have ended a mediocre second term presiding over a listless economy. With his clumsy attack on the courts, combined with his acceptance of judicial supremacy, Obama may have set himself on the same course.

– Mr. Yoo, a former George W. Bush Justice Department official, is a law professor at the University of California, Berkeley, and a visiting scholar at the American Enterprise Institute. He is a co-author of Taming Globalization, just out from Oxford University Press.

John Yoo — John Yoo is the Emanuel Heller professor of law at the University of California at Berkeley and a Visiting Scholar at the American Enterprise Institute. His latest book, Point of ...

In This Issue


Politics & Policy

On Judicial Review

It’s a good thing that President Barack Obama was not writing his law-school exams when he attacked judicial review. The administration is reeling from the Supreme Court’s tough questioning of ...
Politics & Policy

Youth Movement

Dayton, Ohio — The first Senate candidate Senator Marco Rubio (R., Fla.) endorsed this year was Ohio’s state treasurer, Josh Mandel. On the day of his endorsement, Rubio explained to ...


Politics & Policy

Big &#%!ing Joker

An August 26, 2008, Politico story began: “During his first full day of solo campaigning, newly minted Democratic vice presidential candidate Joe Biden showed some of the flashes of the ...

Books, Arts & Manners


The Long View


TO: FROM: RE: Drink? Keith! Darling! I wish I could get together this week. Just totally crazy with everything. But quickly, before I forget, no, we don’t have any plan to do ...
Politics & Policy


  Patience of Dreams A dream arrives with the comforting aura of the mists of morning; a time without shadow or warnings, as I, as horseman, unbridle and release the animal into a broad ...
Happy Warrior

Middle-Class Mick

Midway through a Julie Burchill column in the Guardian bemoaning the Queen’s Diamond Jubilee, I was startled to learn the following: Although fewer than 10 percent of British children attend ...
Politics & Policy


Fiery Defense In the April 2 issue’s “Week” section, you comment that the Chevy Volt had an “annoying habit of bursting into flames.” Two Volts did burst into flames, but both had ...
Politics & Policy

The Week

‐Okay, now can we see his Harvard Law transcript? ‐ Even before Rick Santorum dropped out of the primary, Mitt Romney, President Obama, and political journalists were all acting as though ...

Hunger Strike

I don’t mind Arby’s. It’ll do. The last time I ate there I thought, Hey, I’m not regretting this. Some red sauce, some white sauce, a bun that doesn’t taste ...

Most Popular

White House

Why Tillerson Had to Go

Of all the abrupt comings and goings in this administration, the dismissal of Rex Tillerson is undoubtedly the most important — maybe one of the most important firings since Harry Truman fired Douglas MacArthur during the Korean War. By dismissing MacArthur, Truman drew a firm line between military and ... Read More
Politics & Policy

Hillary’s Other America

I am still chuckling at Hillary Clinton’s speech in India. Among the things she said: If you look at the map of the United States, there is all that red in the middle, places where Trump won. What that map doesn’t show you is that I won the places that own two thirds of America’s Gross Domestic product. ... Read More
Politics & Policy

Samantha Power Regrets

‘I’ve had a lot of bad ideas in my life,” former U.N. ambassador Samantha Power tells Politico. “Though none as immortalized as that one.” Wow. It’s a major concession. And what might “that one” be? Not standing idly by in the White House while Iranians protested a fixed election in 2009, then ... Read More