President Obama is in a snit. The Supreme Court might decide that part or all of the Patient Protection and Affordable Care Act (ObamaCare) is unconstitutional. On Monday he said, “For years, what we’ve heard is the biggest problem on the bench was judicial activism or the lack of judicial restraint, that an unelected group of people would somehow overturn a duly constituted and passed law…” Obama called a negative decision an “unprecedented, extraordinary step” because it would overturn a law passed by “a democratically elected Congress."1

These are extraordinary comments from a supposed constitutional scholar. Surely he must know better. If the courts can’t overturn laws passed by a "democratically elected Congress,” judicial review is a thing of the past. Where could he get such an idea?

Actually, progressives have been trying for years to redefine judicial activism. On July 6, 2005, the New York Times published an op-ed piece titled, “So Who Are the Activists,"2 by Paul Gewirtz and Chad Golder. The intent of the editorial was to turn the table on those who used activist as a pejorative term. They started by claiming that there was no definition of an activist ruling – except that the person using the term simply disagreed with a decision. In their minds, this left the field wide open for them to invent their own definition based on how many times a justice voted to strike down a law passed by Congress. The premise was that judges that overruled democratically enacted laws were the true activists.

With this definition in hand, Gewirtz and Golder ran some numbers and reversed the generally perceived order of sitting activist justices, with Clarence Thomas now being tagged as the supreme activist, and Stephen Breyer celebrated as a paragon of judicial restraint. This was the same Stephen Breyer who believes the Constitution provides "a structural flexibility sufficient to adapt substantive laws and institutions to rapidly changing social, economic, and technological conditions."3 In other words, the Constitution can mean what Breyer wants or needs it to mean.

Did Gewirtz and Golder’s analysis make sense? First, there already existed a generally accepted definition of an activist judge. The term was used for justices who ventured into the legislative or executive realms. The judicial branch should be cautious about decisions that create law, but that doesn’t mean it should blithely bow the other branches when they violate the Constitution. This was not the biggest problem with this New York Times opinion piece. The fatal flaw was that the basic premise was wrong. Gewirtz and Golder opened by writing, "Congress, as an elected legislative body representing the entire nation, makes decisions that can be presumed to possess a high degree of democratic legitimacy,” and conclude their editorial by claiming that their analysis “clearly illustrates the varying degrees to which justices would actually intervene in the democratic work of Congress.” Everything the authors conclude is derived from this premise – the Supreme Court has no right to overrule democratically enacted laws. To accept their definition would mean that democracy is sacrosanct, not the Constitution.

As a philosophical dispute, this might be hard to follow, but fortunately Paul Gewirtz provides us a practical example. In another New York Times op-ed piece published almost exactly five years later, on July 2, 2010, Gewirtz writes, “It is no secret that the current Supreme Court is an activist one in striking down congressional legislation – just look at the prominent cases from the court’s just-completed term, most notably Citizens United v. Federal Election Commission, in which a 5-4 majority of the court’s more conservative justices struck down key provisions of Congress’s bipartisan campaign finance laws."4 In this editorial, Gewirtz ups the ante by bolstering unassailable democratically enacted laws with the ever-alluring bipartisan stamp of approval.

All three branches operate under the auspices of the Constitution. Our liberty as Americans depends on the rule of law, not the whim of a tribunal. If the judiciary felt obligated to rubber stamp every law passed by Congress, then there is no restraint on government, and we have no need for a Constitution.

President Obama’s comments on the pending Supreme Court decision were rooted in principles espoused by Gewirtz and Golder. These are principles not shared by the Founders and far afield from our constitutional-republic form of government. William Paterson, author of the New Jersey Plan presented at the Constitutional Convention later wrote. "What is a Constitution? It is the form of government, delineated by the mighty hand of the people, in which certain first principles of fundamental law are established. The Constitution is certain and fixed; it contains the permanent will of the people, and is the supreme law of the land…and can be revoked or altered only by the authority that made it."5

The Supreme Court is supposed to be the steady hand on the tiller, and their job is to evaluate laws based upon constitutionality, not congressional desire or popular will. In truth, this has not been the case for eighty years. Restoring high court decisions based solely on constitutionality won’t be easy … or quick. For one thing, the selection of a Supreme Court Justice has become a big media event charged with emotion and politics. It’s instructive that political movements hyperventilate when fighting a nominee they dislike, and spend an inordinate amount of resources influencing Supreme Court nominations they do like. Everyone knows these are enormously powerful people–with life tenure. But everyone also pretends their preferred candidate is an impassive judge that measures every decision by the law. If that were so, no one would care who sat on the bench.

James D. Best is the author of Tempest at Dawn. Look for his new book, Principled Action, Lessons from the Origins of the American Republic.

1 http://online.wsj.com/article/SB10001424052702304023504577319944075184350.html

2 Paul Gewritz and Chad Golder, "So Who Are the Activists?” in New York Times, July 6, 2005. http://www.nytimes.com/2005/07/06/opinion/06gewirtz.html

3 Stephen Breyer qtd. in Robert A. Levy, “Judicial Appointments: What’s on Tap from Obama or McCain?” October 2, 2008. http://www.cato.org/pub_display.php?pub_id=9687

4 Paul Gewritz, “Supreme Court Press,” in New York Times, July 2, 2010. http://www.nytimes.com/2010/07/06/opinion/06gewirtz.html

5 William Paterson qtd. in William Mack and William Benjamin Hale, Corpus juris: being a complete and systematic statement of the whole body of the law as embodied in and developed by all reported decisions, vol. 12. (Cambridge, Massachusetts: Harvard University Press and The American Law Book Co., 1917, digitized 2007), 676.