From the Judge's Chambers: President Obama and the U.S. Supreme Court

By William C. Whitbeck In the wake of the government's disastrous oral arguments before the Supreme Court on the question of the constitutionality of Obamacare, the President himself weighed in with a truly remarkable statement. He said that it would be an "unprecedented, extraordinary step" for an "unelected group of people (to) somehow overturn a duly constituted and passed law" that was "passed by a strong majority of a democratically elected Congress." Now, I will grant immediately that taking potshots at the Supreme Court, and courts in general, is a regular pastime on both the left and the right. We can all remember Newt Gingrich suggesting that errant federal judges should be hauled before congressional committees to explain their opinions and that the Congress should abolish the liberal 9th Circuit Court of Appeals. But the President is different. He is the President and as a graduate of Harvard Law School he is surely aware of Marbury v Madison (1803) and the hallowed concept that it is the duty of the judiciary to determine whether "duly constituted and passed" laws are constitutional. But set Marbury aside (as the President appeared to be urging us to do). It is hardly an "unprecedented, extraordinary step" for the Supreme Court to find a "duly constituted and passed law" unconstitutional. From the outset, the Court has held nearly 160 federal laws unconstitutional. Since the 1980s, the Court has averaged about two decisions per year striking down "duly constituted and passed" federal laws. And what about this claim that Obamacare was "passed by a strong majority of a democratically elected Congress?" It is--how should I put this diplomatically--horse pucky. Obamacare passed the Senate 63-39. It passed the House 219-212. Perhaps in the Washington bubble this is a "strong" majority, but not out here in the real world. But it was the "unelected group of people" phrase that particularly caught my attention. One need not go to Harvard to know that federal judges and justices are appointed, not elected. We might expect any president to know that there has never been an elected federal judge or justice in the history of the Republic, just as we might expect any president to know that our Constitution creates three co-equal branches of government. So either President Obama was confused or he was playing another game entirely. The knock on an appointed judiciary, from some "progressives" (and some conservatives), is that such a judiciary is anti-majoritarian. Basically, the term means that since judges and justices in an appointed judiciary never have to face the public in regular election cycles, they are unresponsive to the will of the majority. By his use of the word "unelected," the President was giving more than a wink and a nod to this strain of thought. He was knowingly pushing the populist button. I must admit, as an elected appellate judge, I have some sympathy for the anti-majoritarian argument. But elected judges face exactly the same problems as appointed judges. "Duly constituted and passed" laws come before us, often with considerable popular support, but we must occasionally strike them down when they are unconstitutional. Convictions in the lower courts, often involving heinous crimes, come up on appeal, but we must sometimes reverse them on what may appear to be technicalities, but which are actually protections. So, frankly, it wouldn't matter if we elected the U.S. Supreme Court. The Court would still have to determine whether Obamacare, popular or unpopular, is constitutional. That duty is as old as our nation itself. President Obama's remarks, taken literally and before the White House and the Attorney General attempted to walk them back, appear quite simply to ignore the existence of that duty. One wonders exactly what the next shoe might be. As Peggy Noonan of The Wall Street Journal says, it is all vaguely menacing. Published: Thu, May 3, 2012