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Tuesday, April 03, 2012

Your ox or mine?

First, I strongly disagree with President Obama's suggestion yesterday that it would be inappropriate for SCOTUS to strike down ACA. Other than being (in my opinion) wrong as a matter of substantive Commerce Clause doctrine, it is an entirely proper exercise of judicial review.

But we're getting into Through the Looking Glass stuff now. Congressional Republicans have accused the President of trying to intimidate the Court (Lamar Smith); insisting that a decision invalidating the law would "not be an activist court -- that will be a court following the Constitution" (Mit Romney); and insisting that "[j]udicial activism or restraint is not measured by which side wins but by whether the Court correctly applied the law." (Orrin Hatch). And, of course, we know the difference--striking down ACA is correctly applying the law, while, say, invalidating bans on sodomy is activism. There could not be a better illustration than Hatch's comment that judicial activism is an utterly empty and meaningless epithet. It really depends on whose ox is being gored--if you agree with a decision (or in this case, what many people expect to be the decision, it's correctly following and applying the Constitution, if you disagree, it's activism.

[Update: I missed this, but apparently Sen. Kyl actually insisted that a decision upholding ACA would be activist. I am sure no one in the press asked him to explain that one or what he possibly could have said.]

Congressional Republicans have spent fifty years decrying as activist Supreme Court decisions that just happened (shocked! shocked!) to come out contrary to Republican policy preferences. They have spent thirty years threatening to strip federal courts of jurisdiction to prevent them from making decisions (that Republicans presumably will not like) on certain issues. They have talked, at least informally, about impeaching judges or at the very least statutorily reminding judges of the threat of impeachment. And it was a Republican presidential candidate who, just a few months ago, was running on a platform of ignoring judicial interpretations and decrees and calling federal judges before Congress to explain and justify their decisions.

Again, Obama was flat wrong (and probably politically unwise and somewhat tone-deaf) in what he did. But the President preemptively challenging an expected result--without calling for anyone to disregard the judgment or calling for anyone's impeachment--is intimidation? Given the history of political debates over the Court since the Warren Era, this is just bizarre.

Posted by Howard Wasserman on April 3, 2012 at 06:29 PM in Constitutional thoughts, Current Affairs, Howard Wasserman, Law and Politics | Permalink


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I don't know how he was "flat wrong" (unlike a contributor here who curses at people who deign to not use their real names) and think you provide an overly restrictive reading of his remarks.

I didn't get the idea that he thought the Supreme Court did not have the power to strike down the law. He thought it was not "suitable" for them to strike down the law given precedent etc. The word is looser than something like "illegitimate" or something.

The judges were "flat wrong" for taking judicial notice. As to being "tone deaf," that's debatable too. It is pretty crafty to use conservative self-restraint tropes against critics. Not likely justices will change their mind here, especially with something as personal as "Obamacare" at stake here. Doubt it will matter much either way.

Posted by: Joe | Apr 5, 2012 3:07:10 PM

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