Judicial Activism -- What is it?

In a rather comical exchange today, president Obama said that if the Supreme Court overturns Obamacare, it will be guilty of "judicial activism". Here is how Politico describes the story:

Some liberal groups are preparing to attack the court for judicial activism should the mandate be overturned, and Obama laid the groundwork for that argument on Monday, as he reminded conservatives of their fears of overreaching courts. Overturning the law would be “an unprecedented, extraordinary step” since it was passed by a majority of members in the House and Senate,” he said. “I just remind conservative commentators that for years we’ve heard that the biggest problem is judicial activism or a lack of judicial restraint. That a group of people would somehow overturn a duly constituted and passed law. Well, this is a good example. And I’m pretty confident that this court will recognize that and not take that step.”

The funny thing here is that Obama used to teach Constitutional Law at the University of Chicago Law School, so he understands what judicial activism actually is. It is not overturning as unconstitutional a law passed by a majority in the House and Senate. Obviously, all federal laws are passed by a majority vote in those houses. Under Obama's definition, any decision to overturn a federal law would be judicial activism -- so his definition is clearly wrong. Indeed, under the Obama view, were a court to overturn the Arizona law regarding immigration or the Texas law regarding the need for voter identification, which Obama is actively seeking, that would be judicial activism since those laws were passed by the vote of the legislatures in those states.

The truth is that judicial activism involves the creation of new "constitutional" rights beyond those that already exist. A good example is the constitutional right to privacy. When the court could not find any basis in the language of the Constitution for that right, it said that the right arose from the "penumbra" of certain portions of the Bill of Rights. For those of you who may not know, a "penumbra" is a shadow. The Supreme Court found that the right to privacy was present in the shadow of part of the Constitution. That is their word, not mine. It is no wonder that the justice who wrote the opinion used the word penumbra rather than shadow. In that way, most folks reading the opinion had no idea what he meant; the uproar over finding new rights in the shadow of the Constitution would have been great indeed. Another act of judicial activism came with Roe v. Wade. In that case, the court found a constitutional right to abortion during the first three months of pregnancy. That "right" cannot even be found in the shadow of the Constitution; it came instead from the legislative opinion of the justices.

Do not misunderstand. I am not against personal privacy; nor am I offering an opinion on abortion. That is for another time. I am rather trying to explain the nature of judicial activism.

When the court strikes down a law as unconstitutional and thereby enforces the limits set forth by the Constitution, it is not activism. Were Congress to pass a law that banned the sale of liquor throughout the USA, the Court would properly strike that down since the amendment that repealed Prohibition gave power to control liquor sales exclusively to the states. No judicial activism there. Were the court to strike down as unconstitutional a federal law fining any website that presented matter critical of the government, the court would be enforcing the First Amendment rights of citizens. Again, no judicial activism there.

So, if the court strikes down Obamacare as unconstitutional because it forces American citizens to enter into commerce to buy insurance, a power not granted to Congress under the Commerce Clause, it would not be judicial activism.

Obama knows this, but he seems not to care. Instead, we get the usual Obama big lie technique. When Obama gets into trouble, he just tries to lie his way out of it. When Obama's energy policies push the price of oil and gasoline up through the roof, Obama suddenly announces that he has always been in favor of drilling. He tells us that he is an "all of the above" energy president. Even though anyone paying attention knows that Obama is lying through his teeth, Obama counts on the lack of attention from the average American to save his hide. He lies again and again.

Obama has got to go!