This week, President Barack Obama lashed out at the Supreme Court, slamming it as an “unelected group of people” who will have turned to “judicial activism or a lack of judicial restraint” if they strike down Obamacare. In other words, he was implying that the Court does not have the authority to overturn a law that was passed by Congress if they find it unconstitutional.
Heritage’s Cully Stimson explains that it was “clearly improper (and unprecedented) for the President of the United States, while a case is pending before the high court” for Obama to make those remarks, and on top of all that, the President entirely mischaracterized what judicial activism really is:
Judicial activism is not when courts exercise their constitutional responsibility to overturn statutes that clearly violate the constitution. Rather, judicial activism is when courts ignore the constitution and instead rule on cases based on their policy preferences.
The President’s over-the-top rhetoric prompted Commentary Magazine contributor Peter Wehner to conclude that Obama has finally “jumped the shark.” [For the uninitiated, that's a reference to when "The Fonz" water skis over the fin of great white in an episode of "Happy Days," widely regarded as the beginning of the end of the series.]
Obama, a former community organizer who is perhaps unaware of the finer points of the law, might want to acquaint himself with an obscure 19th century case, Marbury v. Madison, which established the doctrine of judicial review and grants federal courts the power to void acts of Congress that are in conflict with the Constitution. What Obama describes as “unprecedented” has, in fact, been done countless times since 1803.
Then there’s Obama’s confusion about judicial activism. It is not, as he insists, simply the act of overturning an existing law; it is when judges allow their personal views about public policy, and not the Constitution, to guide their decisions and often invent new rights out of thin air. For Justices to invalidate a law they deem to be unconstitutional is precisely what the Supreme Court is supposed to do. (“No legislative act … contrary to the Constitution, can be valid,” is how Alexander Hamilton put it in Federalist #78.) If one takes Obama’s words literally, he believes an unjust and unconstitutional law, if passed by a strong majority of a democratically elected Congress, cannot be overturned.
What the president said, then, was so ill-informed, so ignorant, that people assumed he must know better. There’s no way we can know. But whatever the case, this has been quite a bad stretch for the president…
I don’t know what the political effect of all this will be. But intellectually, this is the week where Barack Obama jumped the shark.
Call it irresponsible, call it “jumping the shark,” but whatever it is, it was one leap too far.
Mike Brownfield oversees execution of The Heritage Foundation . http://www.heritage.org/ social networking strategy and online media outreach as the think tank’s senior digital communications associate.