For a Harvard law graduate and University of Chicago law professor you’d think President Obama would have a better handle on one of the most famous Supreme Court cases in the history of, well…history.
The case is Marbury v. Madison and it helped form the basis for the exercise of judicial review in America. As a law graduate myself I can testify that it is the first case a first year law student is likely to learn about because it formed the foundation for the entirety of Supreme Court jurisprudence to follow. Although the details of the case are complicated the holding was clear: Congress cannot pass laws that are contrary to the Constitution.
“It is emphatically the province and duty of the Judicial Department to say what the law it,” wrote Chief Justice Marshall. “If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.”
Given his comments yesterday, it is clear President Obama seems to disagree with this bedrock principle of federalism.
“Ultimately, 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,” Obama said during a press conference yesterday.
He went on. “I’d just remind conservative commentators that for years what we’ve heard is the biggest problem on the bench is judicial activism or a lack of judicial restraint – that an unelected group of people would somehow overturn a duly constituted and passed law,” Obama said. “Well here’s a good example.”
President Obama may need to adjust his audience because it hasn’t been just “conservative commentators” who have come out guns-a-blazin’ against his ambitious attack on the Supreme Court; it has come from the Left as well.
Here’s liberal columnist (and Obamacare supporter) Ruth Marcus writing in the Washington Post:
“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 government 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.”
. . . That’s what courts have done since Marbury v. Madison.”
Indeed, the Supreme Court has done it quite often. “The precedents go back 209 years and, as Jonah Goldberg pointed out on “Special Report” last night, the Supreme Court has been overturning acts of Congress ever since, on average every 16 months,” writes John Gordon in Commentary Magazine. “So overturning Obamacare would be about as unprecedented as the sun rising in the east tomorrow morning.”
The fact that Obama seemingly forgot a landmark case, or completely misspoke about the unprecedented nature of some Supreme Court action, in and of itself is not troubling. But Obama’s seeming mission to intimidate the justices while they are potentially still undecided on the final outcome of the case against Obamacare should send a chill down the spine of any American who shares the Founders’ vision of the separation of powers with checks and balances.
In his shocking foray into the judicial branch’s turf Obama not only insulted the justice’s competence by arguing that Obamacare is constitutional because “that’s the opinion of legal experts,” but he also attacked the very institution of the Court. By comparing the Supreme Court’s “unelected” status against the backdrop of a “democratically elected Congress” Obama is implicitly threatening a political backlash if the Court strikes down the law.
As Jennifer Rubin explains in the Washington Post, such an outcome could open “a Pandora’s box – contempt for the rule of law and further politicization of the court confirmation process.”
Is that the legacy that a Harvard-educated constitutional law professor really wants to leave? Americans can only pray that it’s not.