Tuesday, April 3, 2012

Activism, Activate!

President Obama plays the famous "Activist Judges!" card when, for once, the phrase is properly used to denote the Supreme Court remaking one-sixth of the US economy and possibly the entire health care system...or more.

In his first thorough comments since the Supreme Court began weighing the constitutionality of health care reform, President Obama launched an impassioned defense of his law on Monday, and cautioned conservatives against embracing the judicial activism the right claims to deplore.

“Ultimately I’m confident 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,” Obama said at a Rose Garden press conference. “And I 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. An unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example. And I’m pretty confident this court will recognize that and not take that step.”

Yeah, this is exactly the point the President should be making as former editor of the Harvard Law Review and as a former professor of constitutional law.  The Supreme Court doesn't normally go about overturning entire laws and telling Congress to start from scratch.  There's ample precedent to uphold the law, and even conservative legal commentators admitted that the law would be upheld precisely because of 60+ years of legal precedent in favor of the Commerce Clause.  This weight of the court's prior decisions, stare decicis, should mean that the conservatives on the court are the least likely to impose the court's will over Congress.

Instead, just the opposite is true.  It's a dead giveaway to the "activist judges" having always been the "conservatives" on the court.  Surprise.

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