And yet, Obama’s assault on “an unelected group of people” stopped me cold. Because, as the former constitutional law professor certainly understands, it is the essence of our governmental system to vest in the court the ultimate power to decide the meaning of the constitution. Even if, as the president said, it means overturning “a duly constituted and passed law.”I'm not sure Obama was trying to impress with this attack. The Supreme Court actually cast their votes on the case last Friday and it's extremely unlikely they really care what Obama thinks about it.
Of course, acts of Congress are entitled to judicial deference and a presumption of constitutionality. The decision to declare a statute unconstitutional, Justice Oliver Wendell Holmes wrote in 1927, is “the gravest and most delicate duty that this court is called on to perform.”
But the president went too far in asserting that it “would be an unprecedented, extraordinary step” for the court to overturn “a law that was passed by a strong majority of a democratically elected Congress.” That’s what courts have done since Marbury v. Madison. The size of the congressional majority is of no constitutional significance. We give the ultimate authority to decide constitutional questions to “a group of unelected people” precisely to insulate them from public opinion.
I would lament a ruling striking down the individual mandate, but I would not denounce it as conservative justices run amok. Listening to the arguments and reading the transcript, the justices struck me as a group wrestling with a legitimate, even difficult, constitutional question. For the president to imply that the only explanation for a constitutional conclusion contrary to his own would be out-of-control conservative justices does the court a disservice.
Worse, the president’s critique, and in particular the reference to “unelected” judges, buys into an unfortunate and largely unwarranted conservative critique of judicial power. We want our judges unelected. We want them to have the final constitutional say. The president should be arguing for a second term to prevent the court from tipping in an even more conservative direction, not channeling tired critiques from the right about activist judges legislating from the bench.
One thing's for sure - Obama is setting up a campaign attack on the court assuming they strike down any part of Obamacare. Expect Obama to campaign on a theme of keeping conservatives off the court, especially given that at least two vacancies are expected in the next term. He won't be able to run on any actual achievements - especially if Obamacare is struck down - so he'll have to rely on scaring voters.