Where you stand often depends on where you sit. Liberals, sitting on the sidelines awaiting the Supreme Court’s decision on the constitutionality of ObamaCare, have come to stand four-square for situational ethics. My 5-4 majority is clearly legitimate, they say; but yours is not.
A certain set of liberal intelligentsia now blithely assert that the Supreme Court would be acting illegitimately, should it dare to strike down the ObamaCare legislation. Such a decision would “trump the will of the voters,” declares Jeffrey Toobin much as the Court did (in Toobin’s imagination) in deciding Bush v. Gore. And, were the Court to decide this matter a narrow 5-4 vote, the ruling would be doubly illegitimate, these Solomons aver. Why? Because that would demonstrate the obstinacy of the conservative majority and its unwillingness to bend.
Let’s leave aside Toobin’s historical revisionism. (The Miami Herald’s post-election study established that even if the Florida votes had been counted as Gore wished, Bush still would have won.) And let’s also leave aside any argument about the bias and obstinacy of the four liberal members of the Court, whom the left presume to be acting legitimately, regardless of the merits of the case.
Instead let’s focus on one aspect of the claim that has so engaged the pro-ObamaCare crowd: That a 5-4 vote overturning the judgment of a democratically elected Congress is fundamentally illegitimate. As President Obama himself put it in April, it would be “judicial activism” for “the Supreme Court [to] take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”
Where were the liberal critics of judicial “activism” in 2008?
Recall that in 2006, the Supreme Court had decided in Hamdan v. Rumsfeld that the military commissions set up by the Bush administration violated the Geneva Conventions and could not be used to try Hamdan. A plurality opinion by Justice Breyer explicitly invited Congress to consider the question, reasoning that the problem was that the Executive Branch had acted unilaterally.
This Congress did, crafting the Military Commissions Act to regulate the military trial of unlawful alien enemy combatants at Guantanamo Bay. A strong majority of a democratically elected Congress (Sound familiar?) adopted the bill. It passed 270-170 in the House and 65-34 in the Senate (much greater than the razor-thin margin that adopted ObamaCare).
In Boumediene v. Bush¸ a narrow 5-4 majority of the court took the “unprecedented [and] extraordinary step of overturning” the law (Sound familiar?). The Court held that even aliens held outside the United States at the Naval Base in Cuba were entitled to seek judicial relief through the writ of habeas corpus and that the law adopted by a wide majority of Congress was unconstitutional because it denied them that right.
One may search, in vain, for then-Senator Obama’s condemnation of the liberal Supreme Court majority for substituting its own judgment for that of the people’s elected representatives. Indeed, the entire liberal commentariat were silent in the face of this judicial activism. The sad truth is that for the left “judicial activism” means nothing more or less than opposing its own policy preferences as law.
Conservatives know better.
As Alexander Hamilton said in the Federalist Papers, the law is about the exercise of judgment and not will. Judicial activism is really about substituting a judicial opinion for the command of law. The law is not an infinitely malleable tool but rather a concrete set of rules based on the text of the Constitution and laws with meanings fixed at the time of their adoption.
Yes, hard cases sometimes arise when applying those texts. But words, in context, have real binding, correct meaning, and it should be the aim of judges to discern and apply the original public meaning of the text at issue rather than what they would want it to mean. That’s why, for example, Justice Scalia often votes to overturn criminal convictions when clear prohibitions of the Bill of Rights have been transgressed even though he is, in his own words, “a law and order man.”
And guess what? Liberals like Jeffrey Toobin know this too. That’s why, in the immediate aftermath of the Supreme Court’s oral argument in the ObamaCare cases – before he got the left’s talking point that overturning ObamaCare would be illegitimate judicial activism – Toobin understood that the Obama administration had lost.
He called the first day of argument a “train wreck” and the second day “a plane wreck.” Not because it was poorly done, but because he knew, having watched the argument, that the Obama administration had simply overreached in urging and signing a law that conflicted with Congress’s enumerated powers in the Constitution.
He knew that, at its core, the federal government is a government of limited powers and that the assertion of the power to force citizens to buy insurance is the assertion of a power without limit.
So when the Supreme Court strikes down the ObamaCare law as unconstitutional, and someone tells you that the Court’s decision was that of an "illegitimate activist court," tell them that the law had to be struck down. And then ask them: “Where were you in 2008?”
Paul Rosenzweig is a visiting fellow at the Heritage Foundation’s Center for Legal and Judicial Studies.