Our good friend CJ Wolfe in the thread notes that we postmodern conservatives were prophetic when we pronounced that it won’t be long before liberals become born-again defenders of judicial restraint. But as Pete noticed, the president actually went further, suggesting that judicial review of the substance of acts of Congress is unconstitutional. This position isn’t completely indefensible (see Gibson, EAKIN v. RAUB), and I certainly wouldn’t mind if Obama would push to the max his defense of legislative democracy over an unelected small group of justices. Here’s what the president said:
“I just remind conservative commentators that for years we have heard 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. Well, this is a good example and I am pretty confident that this Court will recognize that and not take that step,” Obama said to the White House press.
So, as I’ve been suggesting, I’d be all for some kind of deal (how is a problem, of course) that would let ObamaCare slide if the Democrats, taking the president’s lead, started to work to get ROE reversed (or get Congress working to strip the Court of the relevant jurisdiction).
The president might mean that the Court should give a lot more deference to acts of Congress than it does to acts of state legislatures. The response by the leading mind below, of course, is, darn it, if a law is unconstitutional it’s unconstitutional, even if it was enacted according to proper constitutional procedure. In most cases—both national and state (in LOCHNER and ROE, for examples), I have to add, the Court should still have given the benefit of the doubt to the law.
I realize that JUDICIAL ACTIVISM is a murky and partisan phrase. The real problem, as Scalia constantly complains, is the excessive POLITICIZATION of the Court.
