(/sites/default/files/uploads/2012/04/obama-finger.gif)Reverberations from President Obama’s attack on the Supreme Court last Monday continue to be felt, as his allies on the left join the administration’s attempt to intimidate the justices by saying that if the Supreme Court overturns part or all of Obamacare, it will prove that the justices are hyperpartisan and engaging in “judicial activism.” But the federal courts fired a salvo of its own at the executive branch, as a three-judge appeals court in Texas, hearing arguments on another Obamacare suit, ordered the Department of Justice to craft a statement explaining the president’s attack and demanded that the executive branch confirm that the courts have the power to review the constitutionality of laws passed by Congress.
This extraordinary clash between two branches of government was precipitated because the President of the United States and his far-left allies are seeking to delegitimize any adverse decision made by the Supreme Court against what they consider Obama’s signature political achievement: the Affordable Care Act. There is nothing subtle about the assault. It is naked aggression against a co-equal branch of the federal government and the country has rarely seen anything like it.
The former constitutional law professor told reporters on Monday, “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,” adding:
I’d just remind conservative commentators that for years all we’ve heard is that the biggest problem is judicial activism or a lack of judicial restraint. That an unelected group of people would somehow overturn a duly constituted and passed law. Well, here’s a good example.
That’s not a shot across the bow. That’s a full-bore broadside against the notion of an independent judiciary. Leaving aside the laughable notion that Obamacare was passed by a “strong majority” in Congress (219-215 in the House and 60-39 in the Senate without a single Republican vote in either chamber), what does it matter how many congressmen voted for it? The Supreme Court overturns congressional statutes all the time. Writing at the Volokh Conspiracy, David Kopel notes that “It is certainly not ‘unprecedented’ for the Court to overturn a law passed by ‘a democratically elected Congress.’ The Court has done so 165 times, as of 2010.”
And the question of the court engaging in “judicial activism” is equally bogus. How can anyone construe the legitimate function of the Supreme Court to review statutes and determine their constitutionality as “activism” of any kind?
Kopel avers that Obama has now “raised the stakes considerably” for the court:
At issue now is not just the issue of whether Congress can commandeer the People and compel them to purchase the products of a particular oligopoly. At issue is whether the Court will bow to a President who denies the[ir] very legitimacy of judicial review of congressional statutes–or at least those statutes which garnered the “strong” majority of 219 out of 435 Representatives.
The drama moved to Texas on Tuesday where the 5th Circuit Court of Appeals was hearing arguments on a related Obamacare case brought by physician-owned hospitals. Judge Jerry E. Smith asked the government attorney whether the Obama administration believed in judicial review of acts of Congress:
Judge Smith: Does the Department of Justice recognize that federal courts have the authority, in appropriate circumstances, to strike federal statutes because of one or more constitutional infirmities?
Dana Lydia Kaersvang: Yes, your honor, of course there would need to be a severability analysis, but …
Smith: I’m referring to statements by the president in the past few days to the effect— and I’m sure you’ve heard about them — that it’s somehow for what he termed “unelected judges” to strike acts of Congress that have enjoyed — he’s referring of course to Obamacare — to what he termed a “broad consensus” and majorities in both houses of Congress. That has troubled a number of people who have read it as somehow a challenge to the federal courts or to their authority or to the appropriateness of the concept of judicial review. And that’s not a small matter.
Smith wasn’t finished. He then ordered the Department of Justice to write a letter – three pages long and single spaced – “stating what is the position of the attorney general and the Department of Justice in regard to the recent statements by the president. Stating specifically and in detail, in reference to those statements what the authority is of the federal courts in this regard in terms of judicial review.” He demanded that the letter “make specific reference to the president’s statement and again to the position of the attorney general and the Department of Justice.”
A chastened President Obama slightly walked back his inaccurate and stinging attack on the court, saying that he was really referring to the commerce clause when he said overturning Obamacare would be “unprecedented”:
[T]he point I was making is that 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.
Obviously, the president was not making that point on Monday – not even close. And Attorney General Eric Holder, affirming that he would comply with the 5th Circuit’s order, reiterated the Supreme Court’s power of judicial review. “We respect the decisions made by the courts since Marbury v. Madison,” Holder said Wednesday, referring to the landmark case that established the precedent of judicial review by the Supreme Court. “Courts have final say,” he added.
While Judge Smith’s order may have caused the administration to retreat for the moment, no such deference is being shown by the president’s allies on the left. A weird kind of hysteria has gripped the liberal commentariat as pundits try to outdo one another in exaggerated rhetoric and apocalyptic warnings about the “unelected people” on the court as Obama called the justices.
Topping the list of hysterics is laws professor David Dow, writing in The Daily Beast, who is calling for the “impeachment” of the Roberts court if Obamacare is struck down. Dow accuses the court of carrying out a “sustained effort” to “return the country to the Gilded Age.” He says of the arguments conservatives are using against Obamacare, “You don’t have to pull the analytical thread of that reasoning very hard to see that it boils down to an argument for allowing the poor to die.” One almost expected Dow to call for the use of the guillotine on the court’s conservatives by the end of his hyperbolic rant.
Not to be outdone, Maureen Dowd of the New York Times claims that the court “has squandered even the semi-illusion that it is the unbiased, honest guardian of the Constitution. It is run by hacks dressed up in black robes.”
But the biggest outcry from the left echoed the president’s assertion that the court would be engaged in “judicial activism” if it overturned Obamacare. E.J. Dionne noted “a court that gave us Bush v. Gore and Citizens United will prove conclusively that it sees no limits on its power, no need to defer to those elected to make our laws. A Supreme Court that is supposed to give us justice will instead deliver ideology.”
As mentioned above, it is wondrous logic indeed that posits the notion that when the Supreme Court performs the task that constitutionally, historically, and traditionally it has carried out with regards to the constitutional efficacy of any particular law that it is somehow “unprecedented” or evidence of unnecessary activism. And all of this ranting about “justice” and “social progress” shows a determined ignorance about the one salient point never mentioned on the left: that Obamacare is not the only remedy to our health care problems, that it is a bad law whose unintended consequences are just starting to be felt. To believe that the end of Obamacare would be the end of health insurance reform is nonsense.
What might be the result of this concerted attack on the legitimacy of the court? The justices are not immune to this kind of pressure. It is said that the justices read the morning papers like everyone else. And they also read the polls. While it is a comforting notion that the Supreme Court is above the sort of partisan warfare that is going on in Washington now, the facts are a little more prosaic. Each justice, liberal and conservative, has their legal views shaped by their experiences, their knowledge of the law, and yes, their prejudices and biases.
But the left’s unprecedented attack on the court’s legitimacy is a pre-emptive strike designed to both create the conditions for political warfare against the court and conservatives during the fall campaign, and to intimidate swing votes like Justice Kennedy. We won’t know until late June when a decision on Obamacare is expected whether the president and his hard left allies were successful.
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