Obama has been saying for days that if the Supreme Court were to overturn Obamacare it would be an egregious act of ‘judicial activism’. No doubt he is sing this term because conservatives have traditionally been opposed to activist judges applying their own biases and desires instead of simply applying and interpreting the law. He is attempting to change the terms of the debate to fit his narrative. This is actually a common rhetorical tactic and the left has been excelling at this for years but Obama is now boxed into a corner. The left generally applauds activist judges, Obama himself said as much when he stated that judges should consider, empathy, the ‘human element’ and who is weak and who is powerful hen deciding cases.
One can argue the relative merits of such considerations in everyday life but one thing is certain, such these things are separate from the law. Obama and he left have made it a point for years to argue that the judges should be ‘righting wrongs’ and working for what the left calls ‘social justice’ (wealth and power redistribution). The left has made judicial activism a mainstay of pushing their agenda. For Obama to now claim that overturning a law which violates constitutional principles would be tantamount to judicial activism is not just blatant hypocrisy, it is an outright lie.
Judicial activism is not simply overturning laws with which you disagree. Rather, it involves allowing ones agenda and preferred policy positions to take precedence over the law. Judges are umpires, one of the roles of the independent judiciary is to review the process and ensure nobody goes outside the established rules. They do not and should not make laws, but they can make sure laws passed by the legislature do not violate the founding principles of the Constitution because the Constitution is the ultimate rulebook.
According to Alexander Hamilton one of the roles of the independent judiciary was to prevent majoritarian impulses from pushing the government outside of it enumerated powers. These principles hold true whether the majority is seeking to steal property, enforce segregation or expand government control over the economy. Sometimes our passions get the better of us and the role of the Court is to prevent us from straying so far from our founding principles of individual liberty and limited government that we cannot get back when the moment has passed.
There s also a little bit of transference occurring. The left has counted on activist judges legislating from the bench to advance their agenda. As often happens, people will see their own actions and sins in the activities of their opponents. Rather than admit that the individual mandate may diverge from the powers granted to Congress and the President in the Constitution; Obama assumes that opposition to his mandate is based on the same political calculations which inform his own decisions.
Obama is wrong. The only way for the Supreme Court to exercise judicial restraint would be to either uphold or strike down Obamacare in toto. I would add to this that in order for the Court to exercise restraint and make the right decision constitutionally, it would have to strike down Obamacare and leave it to Congress to try again with a new law. Any other option, such as going through the law, upholding or striking down various pieces, would be the height of judicial activism because it would have the effect of the Court legislating from the bench. It is clear what the Court must do, it remains to be seen what they will do, and how Obama will respond.