Obamacare and Judicial Activism


Last week the Supreme Court of the United States heard oral argument on whether to overturn Obamacare. I had written previously in Liberty that I suspected Obamacare would stand, and estimated a mere 1% chance of the vile, disgusting step towards socialized medicine being struck down.

But amazingly, Obama’s Solicitor General, who argued the case, was, by most accounts, totally incompetent. He got so tongue-tied that he had to be verbally bailed out by Justice Ginsberg — several times. He could not articulate a limiting principle for where the powers of government would stop if Obamacare stands. This frightened some of the justices (although, in fairness, no such limit can be articulated, because Obamacare is a slippery slope towards socialism.)

Most importantly, Justice Kennedy said things suggesting that he would probably vote to strike Obamacare down. Kennedy is the moderate justice who holds the crucial swing vote between four liberals (all of whom are thought to support Obama’s health care bill) and four conservatives (who are believed to oppose it). So the legal community now suspects that Obamacare is doomed. The so-called “individual mandate” is most likely going to die, and the entire convoluted, ungodly abomination might get dragged down with it, thus ending America’s nightmarish experiment with socialized medicine.

This is great news for libertarians and bad news for President Obama.

How did Obama respond? This is how: by holding a press conference in which he bullied the justices, threatening them with the charge that overturning his law would be “judicial activism” and noting that the Supreme Court is not elected whereas Obama’s Congress, which narrowly passed his healthcare plan, was elected. His statement contains two glaring flaws.

1. Yes, Congress is elected and the Supreme Court isn’t. That is the beauty of the Founding Fathers’ scheme, that the rights of individuals are safeguarded by courts which do not answer to the whims and emotions of the hysterical and easily manipulated masses. Yet voters had sent a clear message that they did not want Obamacare passed, when they elected Senator Brown of Massachusetts. The Brown election was widely viewed as a referendum on Obamacare. It was an election in which a Tea Party candidate won in a strongly left-leaning state. The bill only passed because of procedural maneuvering by the then-Democratic House. The 2010 election of the Tea Party House was a resounding rejection of Obamacare by the American people. Once again, Obama has a mass of facts wrong.

2. The practice of “judicial review,” the name for courts overturning unconstitutional laws, dates back to the famous case of Marbury v. Madison (1803). Since that case was decided, it has been well established that the courts have the power to overturn laws that violate the Constitution.

It is true, of course, that conservatives often bemoan “judicial activism,” and now Obama is bemoaning it. So what is the difference between judicial activism and judicial review? Is it merely that if you like it you call it judicial review and if you dislike it you call it judicial activism?

I do not believe that’s the truth. I would offer a deeper libertarian analysis: the Constitution of the United States was designed to limit the powers of government and protect citizens from the state, as a reaction by the American Revolutionaries to the tyranny of the British empire, which they had recently defeated. Democrats love to say that the Constitution is a “living document,” which means that the Constitution changes to reflect the desires of the public (which, they believe, have become ever more leftist since the American Revolution). But the meaning of the Constitution is clear, and it does not change. The argument to overturn Obamacare comes from the fact that Congress has only the enumerated powers given it by the constitution. Obamacare sought to use the Commerce Clause, which gives Congress the power to regulate “interstate commerce,” in order to effect a partial nationalization of the healthcare industry. But as I argued before, and as Justice Kennedy implied at oral argument, this is far beyond what the Commerce Clause and the cases interpreting it explicitly permit.

So it will not be judicial activism but judicial review, which consists of faithfully conforming the law to what the Constitution allows, if the Supreme Court overturns Obama’s health care plan. It is judicial activism when leftist judges follow the philosophy embodied in the legal theories called “legal realism” and “critical theory.” These theories hold that there is no such thing as an objectively correct or incorrect interpretation of the law, and therefore a judge is free to rule as his or her subjective feelings on morality and justice dictate (and note that somehow these feelings are almost always Marxist or leftist feelings).

Critical theory, which explicitly attacks the legitimacy of “legal reasoning,” is hugely popular on many law school campuses. Many of the lawyers and judges of the future may buy into it. But when the Supreme Court rules on Obamacare in June of this year, I hope it will be clear to the Marxists that they don’t run America quite yet.

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Rob McMillin

One other point that needs making: it seems like the left can't imagine anyone confronting them over a state takeover of medicine. A fine example came up in New York Times columnist Maureen Dowd's April 3 piece in which she sneered that it was "risible" that Justice Scalia should ask whether a Constitution with a Commerce Clause so broad it could add a health care mandate would not also allow Congress to force people to buy broccoli. It says volumes that she does not bother to answer that question, and for this reason: she cannot.

Rob McMillin

The "living Constitution" is a call for mob rule. That is, anything that can get past Congress is the one and only test of constitutionality according to the left. It is an unprincipled power grab.


I think we, unfortunately, need to pass 2 more amendments to the constitution.

#1) Affirming that yes, the 10th amendment really means what it says. An odd amendment to reaffirm what should be obvious.

#2) An amendment stating that the preamble is just a preamble. Not any justicifaction for any law. Again, should be obvious, but it is apparently needed.

Fred Mora

So Judge Kennedy, who holds the key to the future careers of so many Democrats, is going to serenely form an opinion, detached from the hubris and pressure of politics, and only with America's future in mind.

Yeah, right.

You can bet that the whole Democrat machine is going to pressure him -- sorry, to bring up convincing arguments -- along with vague threats.

Watch for an intense media campaign to start with. I bet the whole bio of the poor guy is going to be exhumed. No stone will be left unturned. He every foible, his most casual words will be examined, magnified, and dragged upfront in the most unfavorable light.

If he really, really is a saint with no leverage to be found, then a couple of hags from Chicago will come forward and declare that he raped them.

And, if it comes to that, remember that Kennedy is 76. People get frail at that age. If he doesn't die from the stress before June, he'll just see what vilification and humiliation the media can bring upon him, and he'll decide that it's not worth it.

Your 99% estimate is a bit pessimistic. It's more like 75%.

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