On my way home from work tonight I heard the following exchange between Hannity and Ann Coulter, with Ms. Coulter arguing in part what I state below: judicial activism is not a court finding a law unconstitutional, but finding new rights or failing to enforce existing constitutional rights. Often she’s a bit extreme to be taken completely at face value, but I think she’s right to point out the judicial activism that concerns the right is not what apparently concerns the left:
If you thought the open mic comment to new Russian President Medvedev was pretty bad, President Obama has created some competition for himself in the gaffe department. Or was it another window to his soul?
You may have heard that Monday President Obama appeared to warn the Supreme Court regarding its pending decision on Obamacare. His comments were as follows:
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. Well, this is a good example. And I’m pretty confident that this Court will recognize that and not take that step.
Yahoo called the remark a “challenge” to the Court. Others weren’t so kind. Among other problems with the President’s statement, you may recall that whether Obamacare was passed by a “strong majority” can be called into question. It was a purely party-line vote. But I digress.
I’m willing to assume President Obama, as a constitutional scholar, understands the concept of judicial review, and that courts overturning unconstitutional laws is not “unprecedented.” As a liberal, he may even be among the first to re-affirm that Marbury v. Madison is still good law. But the tone and chosen wording of the President’s comments caused the White House to have to defend itself from some of those “unkind” remarks yesterday. White House Press Secretary Jay Carney (the guy distributing the Obama Kool-Aid) tried to make the case the President was “clearly” referring only to commerce clause cases, and with respect to those only those of the past 80 years. Neither qualification, of course, was actually included in the President’s initial comments. When pushed as to whether the president was clarifying his remarks, Carney said “Only because a handful of people didn’t understand what he was referring to.”
Here’s a link to the video should you care to watch. Today he added that the President had been speaking in “short-hand.” I hope that flexibility is accorded both sides in campaign season. We’ll see.
The president’s statement caused Ruth Marcus of the Washington Post to write:
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.”
And she makes clear she’s on his side otherwise. (more…)