Tuesday, April 03, 2012

Judidical activism for me, but not for thee

President Obama spoke out yesterday against the Supreme Court voting to strike down his namesake health reform law.
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.

And I would like to remind conservative commentators that for years what we have heard is that the biggest problem is judicial activism and that an unelected group of people would somehow overturn a duly constituted and passed law.
Oh, dear. Where to begin? First of all, as the WSJ reminds us, the bill was not passed by "a strong majority" in both houses. It only passed 219-212 in the House of Representatives. And it only passed through the Senate, after Scott Brown's surprising election to replace Ted Kennedy, an election that Brown won because he campaigned specifically against Obamacare. That lost the Democrats their filibuster-proof majority and had to push through Obamacare by the gimmick of calling it reconciliation and so it only needed 51 votes to pass the Senate. That is not a sign of strength.

Then Obama ignores all the times that liberals have cheered when the Supreme Court overturned laws passed by democratically elected politicians from segregation to abortion to telecommunications bills to laws on capital punishment. President Obama himself has cheered when the Supreme Court struck down a law signed by President Bush to allow military tribunals for enemy combatants in the 2008 case of Boumedienne v. Bush. That struck down the Military Commissions Act of 2006 which passed with stronger majorities than the Affordable Care Act. It passed 250-170 in the House and by 65 to 34 in the Senate although not including then-Senators Barack Obama, Joe Biden, and Hillary Clinton. But it did have bipartisan support from 12 other Democrats which is more than Obamacare had. And yet, the Supreme Court found a previously undiscovered right to habeas corpus right for enemy combatants held at Guantanamo. It was a 5:4 decision with the majority opinion written by, of course, Anthony Kennedy.

And was Barack Obama upset then about The Supreme court taking the "unprecedented extraordinary step of overturning a law that was passed by a strong majority of a democratically elected congress" in Boumediene? Nope. In fact, he praised the decision.
Mr. Obama issued a statement calling the decision “a rejection of the Bush administration’s attempt to create a legal black hole at Guantánamo” that he said was “yet another failed policy supported by John McCain.”

“This is an important step,” he said of the ruling, “toward re-establishing our credibility as a nation committed to the rule of law, and rejecting a false choice between fighting terrorism and respecting habeas corpus. Our courts have employed habeas corpus with rigor and fairness for more than two centuries, and we must continue to do so as we defend the freedom that violent extremists seek to destroy.”
So clearly, Obama doesn't oppose the Supreme Court using a narrow five-to-four majority to strike down a law passed by strong majorities in both houses.

And what can Congress do when the Supreme Court strikes down one of their laws? They can go back to the drawing boards and recraft the law to follow the ruling of the Court as they did by passing the Military Commissions of 2009 to take into account of the Court's objections. That is how our system works.

And if Barack Obama, a graduate of Harvard Law and constitutional law professor at the University of Chicago is ignorant of the Supreme Court's history of striking down laws passed by legislatures, Jeffrey Anderson has a reminder for the President.
Contrary to Obama’s contention, however, the Court’s power to strike down unconstitutional congressional acts has repeatedly been exercised (sometimes legitimately, sometimes not). Here is just a smattering of cases in which the Court has struck down all or part of an act of Congress: Marbury v. Madison (1803), Dred Scott v. Sandford (1857), Myers v. U.S. (1926), Schechter Poultry Corporation v. U.S. (1935), Bolling v. Sharpe (1954), U.S. v. Lopez (1995), Clinton v. City of New York (1998), U.S. v. Morrison (2000), and Boumediene v. Bush (2008).
Anderson also provides this link to the Government Printing Office list published in 2002 of 158 laws overruled by the Supreme Court.

For my students I pose a Question of the Week every week that they can research and then send me the answer for extra credit and it just so happens that my QOW for this week over our Spring break just happened to be on laws struck down by the Supreme Court. My students have been emailing me the answer to these questions in the past week. Perhaps the President could hire some of them as fact-checkers the next time he wants to make unfounded assertions to demagogue against the Supreme Court. My tenth graders apparently know how to use Google better than the President's staff.

UPDATE: Leon Wolf has another example of Obama's hypocrisy about the Supreme Court overturning a law passed by Congress. Obama wanted.
Of course, in making these comments Obama is exposing himself yet again as a cynical hack who is devoid of anything resembling shame. In 2003, the United States Congress passed the Partial Birth Abortion Ban Act of 2003 by substantially larger margins than Obamacare. When the Supreme Court refused to strike down this law, which was passed by a “democratically elected Congress,” then-Senator Obama threw an absolute hissy fit about the fact that the Supreme Court had upheld the clear will of Congress (and the vast majority of the American people).
And as Tim Stanley points out, the principle Obama seems to be following is that "it's judicial empathy if the Supreme Court agrees with me, judicial activism if it does not."
Barack Obama defines judicial activism as anything that contradicts the needs of the folks who vote for him. And the Pres defines those folks as a coalition of the downtrodden and oppressed who all need a little governmental activism in their lives: the real people, the little people, the people with whom judges should have empathy. Therefore, while no court should touch Obamacare (which benefits the poor Obama voters), the administration has no trouble with federal courts striking down anti-gay marriage referenda in the states (which benefit gay and lesbian Obama voters). Likewise Roe v Wade – surely one of the most compelling examples of judicial activism in American history – is thought to benefit women/feminists and so is A-Okay with this administration. In fact Obama went so far as to issue a note of celebration for Roe v Wade on the anniversary of its passage, saying that the decision, “affirms every woman’s fundamental constitutional right to choose whether to have an abortion, as well as each American’s right to privacy from government intrusion. I have, and continue to, support these constitutional rights … Today and every day, we must strive to ensure that all women have limitless opportunities to fulfill their dreams.” Doesn’t it make the heart soar?