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  • Supreme Court and Obamacare: Judicial Activism or Judicial Review?

    The deeper meaning and implications of the Obamacare case for the Supreme Court’s reputation and constitutional law will be debated for years to come. In its annual Supreme Court review event at Heritage yesterday, an all-star cast of scholars, advocates (including Solicitor General Donald Verrilli), and journalists tackled those topics.

    The Court did rule that the Obamacare insurance mandate violates Congress’s Commerce Clause power. But Chief Justice John Roberts reframed the statute to let it stand under Congress’s power to tax. Legal scholars disagree whether that reframing—or judicial rewriting, as the dissent claimed—was convincing or legitimate, but the implications of that distinction for future cases are even more in question. For many opponents of the law, including Michael Carvin, who argued the case in the Supreme Court for the National Federation of Independent Business, the distinction doesn’t make much of a difference.

    “The operation was a success, but the patient died,” Carvin said during The Heritage Foundation’s annual Scholars and Scribes panel. Carvin added that the Court’s ruling could greatly enhance Congress’s power to regulate through phony taxes. Lawmakers will be able to pass any “penalty” they want, Carvin said, and count on Roberts to redefine it as a “tax” for constitutional reasons.

    As panelist David Savage of the Los Angeles Times noted, reporters used to have hours to read a decision, think about it, and consult other experts before they were expected to file a story explaining what it said. Now they have minutes. That deadline pressure leads to mistakes, such as the ones made this year by CNN and Fox.

    Savage also wondered whether conservatives ought to applaud Roberts’s decision, since it upheld an act of Congress and could thus be seen as an example of showing judicial restraint. But as Heritage’s Todd Gaziano explained, if the law in question is unconstitutional, a judge has no choice but to strike it down.

    “The correct view of [the judicial role] is calling the balls and strikes as the law requires,” Gaziano said. “An incorrect view [is] to say ‘judicial activism’ [is] whenever a court strikes down a law, because [striking down a law] is their duty if they are following their oath to defend the Constitution in many cases.”

    Judicial review, as opposed to judicial activism, is crucial. “Judicial review is the power of courts to evaluate laws and the actions of government to determine whether they are constitutional,” explains a Q & A on the Heritage First Principles page. “Judicial activism goes beyond judicial supremacy as it involves judges substituting their own preferences for laws enacted by lawmakers. This is also popularly called legislating from the bench.”

    There’s no way to know what Roberts was thinking when he wrote his decision, of course. But Carvin says the Chief Justice “clearly rewrote the statute,” and that’s exactly the sort of activism Roberts promised to avoid in his confirmation hearings seven years ago.

    Posted in First Principles, Obamacare [slideshow_deploy]

    11 Responses to Supreme Court and Obamacare: Judicial Activism or Judicial Review?

    1. Jon says:

      Chief Justice John Roberts will henceforth forever be called Chief Justice Dred Scott. The Obamacare ruling could be called Dred Scott II, except that it is worse than the Dred Scott decision because it enslaves more people to the federal government. There were 4 million slaves in the U.S. at the time of the Dred Scott ruling that denied all rights to slaves. The Obamacare ruling makes slaves of over 300 million people. It's called "Indentured Servitude". Chief Justice John Roberts will henceforth forever be called Chief Justice Dred Scott.

    2. Jon says:

      The Obamacare ruling could be called Dred Scott II, except that it is worse than the Dred Scott decision because it enslaves more people to the federal government. There were 4 million slaves in the U.S. at the time of the Dred Scott ruling that denied all rights to slaves. The Obamacare ruling makes slaves of over 300 million people. It's called "Indentured Servitude". Chief Justice John Roberts will henceforth forever be called Chief Justice Dred Scott.

    3. Blair Franconia, NH says:

      Judicial review.

    4. Delores Smith says:

      AMERICANS,
      This was legislating from the bench…judicial activism. A MANDATE IS A MANDATE, AND A TAX IS A TAX.
      On the first day of oral arguments, it was referred to as the LAW was written….A MANDATE. The question to be decided was "Could citizens be FORCED to buy a product under the Commerce Clause?" On the second day of oral arguments, one of Obama's appointees began using the word "TAX". Justice Kennedy asked, "Why are you using the word TAX?" Thanks, Justice Kennedy, that brought the hanky-panky to my attention. Chief Justice, John Roberts, in my opinion, you were either bribed, blackmailed, or had an aura from an epileptic seizure which is medical condition of yours. You rightfully ruled that the Health Law was unconstitutional under the Commerce Clause, but in essence you changed the INTENT OF THE LAW by changing MANDATE to the word TAX, giving the LAW its 22nd TAX. I agree with the dissenting Justices.
      Delores Smith
      Delores109@cox.net

    5. Bobbie says:

      it's so shameful the country has come to this and to have so many people in so many positions of government authority, under the weak and feeble influences of the ill thinkers. As an American I feel violated by the injustice of all the Justices that brought it here. For a second I thought Justice Roberts spinning it into a tax would bring Obama to give in, "We have to drop it. I said it wasn't a tax and it turns out it is…" silly me for a second. Please do everything that can be done!

    6. Ben says:

      Roberts got in bed with Obama! We can only hope that they both get aids and the death panel refuses them treatment. Roberts turned into a snake oil salesman and took Obama's side! This country has very little hope with the leaders in place.

    7. robosch says:

      Shame on us for electing the congressmen who passed this law in the first instance. If it wasn't passed, it would never have got to the courts. Maybe that's Justice Roberts' message. The people need to repair the damage in November.

    8. tanarg says:

      The only solution is to take the Senate and keep the House and thereby ensure that the insane law is repealed.

    9. tanarg says:

      Don't quite understand why my comment wasn't posted. Perhaps it was because it wasn't about the central question of this article: whether it was judicial activism or judicial review that Chief Justice Roberts engaged in. I think there's a third way that's informed by an abiding desire to force political decisions into the political sphere, not the courts. In that sense, it was judicial activism, but not in the sense that he supports a mandate but rather that he supports the notion that the legislative branch should be in charge of making decisions about how the country is going to be doing things.

    10. Dan says:

      I have a different view of this now. Roberts has left it up to the people so in November we can make the final decision.

    11. Keith says:

      I've searched for hours and yours is the best analysis of the 28 Jun SCOTUS decision I could find. Blaze had a good one, too. Thanks for all you do.

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