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.