I spoke this morning with Armstrong & Getty about President Obama’s comments about the judiciary’s power to strike down laws as unconstitutional. You can listen here. I think the whole thing is a tempest in a teapot. No doubt President Obama was wrong to say that his health care overhaul was “passed by a strong majority,” when it was actually passed by half a dozen votes in the middle of the Christmas break, after having bought the votes of Senators from Nebraska and Florida and Louisiana with special little earmarks. And it’s not true that striking down that law would be “unprecedented,” since the Supreme Court has struck down federal laws since 1803—and the principle of judicial review is far older than that; one of the bedrocks of the rule of law itself. That’s why the term “judicial activism” is usually meaningless. Still, a politician’s extemporaneous remarks at a press conference don’t deserve to be taken as some sort of official legal position, and I found it shocking that the Fifth Circuit Court of Appeals would demand that the Justice Department explain such remarks in a formal pleading. That makes the court look petty and political, and it’s clear that, while President Obama doesn’t think the Court should strike down this particular law, he doesn’t actually deny the power of courts to rule laws unconstitutional. And yet, at the same time, Attorney General Eric Holder was wrong to tell reporters afterwards that the courts have the “final say” on the constitutionality of a law. That’s not right—courts do have the power to declare laws unconstitutional, but it’s the job of all the branches of government to enforce the Constitution. It’s the duty of the President not to enforce unconstitutional laws, and it’s the duty of the legislature not to pass unconstitutional laws.
Still, if the President meant to pick a fight with the Supreme Court, nothing could be more foolhardy. It harkens back to the 1930s, when Franklin Roosevelt clashed with the Court over the New Deal. In 1936, the Supreme Court issued a series of decisions (rightly) striking down major portions of the New Deal, and Roosevelt responded by proposing the “Court Packing Plan” which would have allowed the President to appoint a new majority to the Court. It was wildly unpopular—even among Democrats. Historian Jeff Shesol points out that it led to the breakup of the New Deal Democratic coalition, and the rise of the southern Democrats who later were the key to Ronald Reagan’s election. It would be politically unwise for the Obama Administration to repeat that mistake.
And it would be a terrible idea in legal terms, as well. Although Roosevelt’s Court Packing plan didn’t pass, the Court got the message in 1937, and it reversed itself, issuing a series of very pro-government precedents that undermined protections for individual rights. In some ways, we still live with that legacy—the reason that property rights and economic liberty are so vulnerable to legislative violation today is because of those precedents. And in the 1950s and 1960s, when the Court started upholding privacy rights and racial equality, it did so only haltingly because of these precedents. Justices like Hugo Black and Felix Frankfurter refused to go along with the effort to protect these rights, because they believed—and correctly—that the New Deal precedents stood in the way. Progressives would do well to remember how hard it was for them to overcome the deferential, pro-government attitude that the New Deal Court adopted in order not to be an “activist” court.
An attack on the Court is an attack on the security of individual rights, and we should all keep that in mind when we hear anyone—left or right—condemn the courts for “judicial activism.”
(Cross-posted at PLF Liberty Blog.)