Understanding what ‘judicial activism’ means
The fate of Obamacare now rests with the Supreme Court, and President Obama knows it. In the strongest language of a president toward the Court since FDR announced his ill-fated court-packing plan in the 1930s, President Obama recently challenged the legitimacy of any decision by the Court ruling Obamacare unconstitutional.
In the President’s words: “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. And I’d 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 — that 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 that this court will recognize that and not take that step.”
Is the President correct to brand conservatives opposed to judicial activism as hypocrites for wanting the Supreme Court to now overturn Obamacare? The answer to this question depends wholly on what one means by “judicial activism.” And that is where Obama’s argument falls apart.
While the President correctly notes that conservatives routinely deride judicial activism, that phrase does not mean to conservatives what Obama says it means.
For conservatives, judicial activism is not about, in the President’s words, “an unelected group of people [who] would overturn a duly constituted and passed law.” Courts overturn laws as unconstitutional all the time, and this power has existed since at least the time of the 1803 landmark case of Marbury v. Madison.
Rather, conservative complaints about judicial activism have a much different genesis, one that derives from the importance of the rule of law in safeguarding a free society.
The rule of law protects freedom by establishing a standard upon which all of us can depend and all of us must abide. No one is too big to be above the law, and no one is too small to be unworthy of the law’s protections.
This system requires the judiciary to keep other government officials in line whenever they act in ways contrary to the Constitution. The role of judges, therefore, is to enforce the rule of law — no more and no less.
Judicial activism, from this perspective, results when judges abandon this duty to follow the Constitution and instead base their decisions on personal preference.
Lady Justice wears a blindfold because court rulings should not be dependent on politics, bias, favor, money, power, or any other criteria apart from the law. The last thing we should want is a judiciary that bends reflexively to the will of the political branches of government.
Judicial independence is highly valued because courts must be free to enforce the law even when doing so is unpopular. Judges are the last line of defense against politicians who pander to the moment. The law should always trump popular passion.
Suppose Congress passes a law outlawing criticism of the government. Should the Supreme Court overturn the law as a violation of the plain terms of the First Amendment? Or should the Court bow down to the wishes of a “democratically elected Congress” and allow the law to stand?
The only defensible result in this scenario is for the Court to throw out the law because the Constitution squarely forbids any effort to ban such criticism.
Overturning such a law is not judicial activism; instead, judicial activism would be any attempt to allow this type of constitutionally offensive law to stand.
Similarly, striking down Obamacare would not constitute judicial activism if Congress lacks the power under Article I under the Constitution to enact Obamacare into law. On that score, the recent oral arguments before the Supreme Court on Obamacare’s constitutionality are significant.
The Constitution clearly intends for there to be limits to the areas of life that Congress can regulate. The whole concept of enumerated powers centers on the idea that Congress can only legislate in the limited areas spelled out in the Constitution.
As James Madison wrote in Federalist Paper 45, “The powers delegated by the proposed Constitution to the federal government are few and defined.”
Solicitor General Donald Verrilli’s inability in oral argument to articulate a limiting principle to congressional power post-Obamacare demonstrates the fundamental problem with the legislation. Signing off on Obamacare means signing off on the idea that Congress can regulate any area of life it wants to.
And that position is untenable for any jurist interpreting the Constitution. It is also dangerous for the rest of us.
Activist judges threaten freedom because they elevate personal preference over constitutional text. The rights we cherish cannot be secure if the words of the Constitution are not binding on those who take an oath to honor and protect those rights. Liberty and fidelity to the Constitution go hand-in-hand.
[Lance McMillian is a Fayette County resident and law professor at Atlanta’s John Marshall Law School.]