President Obama has waded into the legal battle surrounding his landmark health care law with a stern warning to the Supreme Court not to overturn it. Specifically, Obama argues that the Supreme Court deciding in such a way would be an “unprecedented” example of “judicial activism” undertaken by “unelected” judges. The relevant excerpts of the President’s speech, as reported by Reuters, are as follows:
“Ultimately, I am 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’d just remind conservative commentators that, for years, what we have 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,” Obama said.
“Well, this is a good example, and I’m pretty confident that this court will recognize that and not take that step,” he said.
The remarks have prompted a flurry of speculation about how much of an effect, if any, the President’s remarks will have on the Court’s eventual decision. The Drudge Report has openly speculated that President Obama knows something about the eventual outcome of the case, possibly through a leak from the high court itself. The Huffington Post, meanwhile, has drummed up the President’s confidence with the headline “It Will Stand.”
Here’s the video of the President’s actual remarks:
How accurate is Obama’s charge of “judicial activism,” though? While it’s true that the Supreme Court has at times deferred to the will of Congress, or of state legislatures, a decision blocking laws that are passed by “strong majorities” is not so “unprecedented” as he might think. In fact, the Court struck down an act of Congress as recently as 1996 – specifically, the Line Item Veto Act, which passed the Senate by 69-29, and passed the House by unanimous consent. This is a much stronger majority than existed in the case of Obamacare, and ironically, the judges who struck the law down were (with the exception of Clarence Thomas) all from the liberal wing of the court. Another case where the Court struck down a law passed by the Federal Congress concerned the Religious Freedom Restoration Act.
In fact, very recently, the Court arguably took on both the President and the Congress in the case of Hamdan v. Rumsfeld, which not only ruled that the Bush administration could not try detainees under military commissions without express authorization from Congress, but explicitly set aside an existing act of Congress which arguably removed the Court’s jurisdiction over the case. Again, the majority in this case consisted of liberal justices, and Justice Anthony Kennedy.
So does Obama know something we don’t, or is the charge of judicial activism unwarranted? Weigh in below.