Friar Francisco Nahoe OFM Conv

Yesterday, President Obama expressed his great confidence that the Supreme Court would uphold his healthcare statute this summer. In not so veiled language, however, he also asserted that any contrary ruling would deserve severe criticism as a political act by the justices. The President, a graduate of Harvard Law School, knows as well as any high school civics student that the Supreme Court of the United States was designed by the framers of the Constitution to act independently of the opinion of others. The strength of our tripartite division of governmental powers lies as much in the independence of our judiciary from opinion of others as in the dependence of legislatures and executives upon those same opinions. This is because nothing more afflicts authentic freedom than the tyranny of majority opinion when majority opinion is wrong. Jim Crow laws come immediately to mind.

Granted, the President faces potential devastation. The nation’s highest court may well determine that the centerpiece of his administrative activity is entirely unconstitutional. Moreover, any executive ought to be concerned about the implications of such judicial review. For ObamaCare to be struck down, in whole or in part, by the Supreme Court would leave the President vulnerable to serious questions about his legal competence, his administrative efficacy and his historical legacy. Even so, as an American who is reasonably optimistic about the vigor of the US freedoms, I would like to suggest that the higher aspirations of an executive should be simply to understand what the Constitution permits and to learn how conform his policies to its limitations on the power of the government.

Unfortunately, our President has shown little interest in the higher values of thinking about the Constitution. Instead, he is desperately scrambling to establish a political case against the Supreme Court and, to do so more effectively (he thinks), he has borrowed the language, if not the convictions, of his own political opponents. Yesterday, he snarled the following to dissenters: “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.” Franklin Delano Roosevelt demonstrated a similarly self-serving confidence until the Supreme Court outlawed key elements of his New Deal in the well-known Black Monday rulings. Afterwards, an irritated and defensive Roosevelt threatened to pack the Supreme Court and introduced the Judicial Procedures Reform Bill of 1937 – a bold, but ultimately failed, attempt by the executive to overwhelm the independence of the Supreme Court.

Any plausible accusation of judicial activism ought be established, not on the basis of press conference politicking from an incumbent, but rather on the basis of a careful review of the court record and the judicial opinions rendered. Indeed, textualist jurists and scholars have done just that over the long term and have raised serious concerns about the conduct of American jurisprudence. Even so, for generations, those who have supported the outcomes of Griswold v Connecticut and Roe v Wade, Barack Obama included, have either pretended that the concept of judicial activism is a non-starter, or they have explicitly lauded judicial activism as a good thing because it serves their ideologies. Nonetheless, by granting that there is such a thing as judicial activism and by decrying it himself, the President may actually be making more of a concession to his conservative opponents than he fully realizes.

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