After the oral argument at the Supreme Court in the Obamacare case, President Obama lectured the justices: “Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress. And 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.”
Now, certainly there would be no logical difference in Obama’s formulation between a duly constituted and passed federal law and a state one, right? So let’s turn to Arizona’s immigration law. Just like Obamacare, S.B. 1070 passed the legislature on essentially a party-line vote and was signed into law by the chief executive. (The difference is that Democrats controlled the federal government at the time Obamacare passed and Republicans controlled the Arizona state government when S.B. 1070 was passed.)
As in the oral argument for Obamacare, the administration took a beating in oral argument for the Arizona case. It is widely expected that at the very least, some significant parts of the statue will survive Supreme Court review. I don’t expect, however, that Obama will cheer the deference afforded to a piece of popular legislation. In fact from the get-go his Justice Department was determined to invalidate the law.
Obama’s actually not been a defender of judicial deference in the past. John Yoo points out: “Nor did Candidate Obama similarly criticize the Court when, in Boumediene v. Bush (2008), it struck down the Military Commissions Act’s reaffirmation that enemy prisoners at Guantanamo Bay had no right to seek habeas corpus from civilian courts during wartime. In fact, he had nothing but praise for the Court’s rejection of a law that had passed 65-34 in the Senate and 253-168 in the House.”
Now Obama, of course, doesn’t care one bit about deference to legislation passed by a democratically elected legislative body. He is concerned with outcomes, namely that the Supreme Court rubber-stamp his agenda. (Strike down the Defense of Marriage Act, uphold Obamacare, etc.) As do many on the left, he is convinced that whatever legislation he likes is constitutional and whatever he strongly objects to must offend some constitutional provision. This mind-set perfectly reflects the degree to which judicial review has become a matter of subjective preferences for the left.
Ironically, Obama’s appointee Justice Sonia Sotomayor seemed to discern in the administration’s argument an overreach not consistent with federal principles of preemption. Kudos to her; she seems to not be operating, as she told law school gatherings once upon a time, as a “wise Latina” but as a justice responsible for determining the meaning of the Constitution and the laws that come before her.
For too many on the left, judicial philosophy approaches deconstructionism (or postmodernism, if you prefer) — the literary, interpretative fad that posits that words have no fixed or objective meaning. In the literary realm, all that is lost is intellectual rigor. Unfortunately, in the political realm such a viewpoint leads to the disintegration of the rule of law.
No wonder the left abhors the “conservative” justices (watch out, Justice Sotomayor): They stand between the left and a political system in which “constitutional” means “my way.” The totalitarian temptation is stifled by the rule of law and the notion that judicial review is about more than who had the votes to pass the law or who had control of the White House and Senate (in nominating judges). Maybe that is why the Supreme Court continues to rank high on the list of the nation’s most respected institutions.