Michael Tanner

Who says bipartisanship is dead? Left and Right have finally found something that they agree on. They are both unalterably opposed to judicial activism — except, of course, when they aren't.

The latest meme from the Obama administration, congressional Democrats, and much of the media is that if the Supreme Court were to strike down all or part of Obamacare, it would place the Court's legitimacy itself at risk. After all, since only 28 state attorneys general, at least two District Court Judges and five Circuit Court Judges (including a Clinton appointee), numerous law professors, the 52 organizations and hundreds of state legislators who filed briefs in support of the plaintiffs, and 72 percent of the American public believe that Obamacare's attempt to force every American to buy a specific commercial product is unconstitutional, it would obviously be an unprecedented act of judicial activism for the Court to agree.

Of course, there is nothing really unprecedented about the Court striking down legislation that it finds outside of constitutional bounds. Between 1803 and 2002, the Supreme Court struck down as many as 1,315 laws on constitutional grounds. Indeed, many of the judicial decisions that liberals hold most dear involved striking down legislation. For liberals to now argue that legislative action has become inviolate is pretty much the height of chutzpah.

To some extent, though, conservatives are simply being hoisted on their own hypocritical petard. After all, opposition to “activist judges” has become a standard part of conservative boilerplate. It was only a few weeks ago that Newt Gingrich was winning plaudits for his threat to haul recalcitrant judges before Congress and pledging that he would simply ignore Court rulings with which he disagreed. And, when the courts struck down California’s Proposition 8, many conservatives were apoplectic at the idea that a court could overrule the democratic will of the voters. An entire generation of conservatives have seemed to echo Robert Bork’s call for deference to legislative majorities in nearly all circumstances and dismiss the Ninth Amendment’s description of unenumerated rights as a mere “inkblot.”

For both sides, judicial activism has come to mean “any Supreme Court decision that I disagree with.”


Michael Tanner

Michael D. Tanner is a senior fellow at the Cato Institute, heading research into a variety of domestic policies with particular emphasis on health care reform, welfare policy, and Social Security. His most recent white paper, "Bad Medicine: A Guide to the Real Costs and Consequences of the New Health Care Law," provides a detailed examination of the Patient Protection and Affordable Care Act (Obamacare) and what it means to taxpayers, workers, physicians, and patients.