Judicial Activism

Yesterday, the President said it would be an 'unprecedented' case of judicial activism if the Supreme Court were to strike down the Affordable Care Act as unconstitutional. There are a couple of problems here. First, the court regularly strikes down laws passed by Congress, so there is nothing unprecedented. Second, he and I differ on the definition of judicial activism.

Judicial activism is when the court legislates from the bench. For instance, a judge in Missouri ruled that taxes would be raised and how the money would be spent for a Kansas City school district. That was activism. In Roe v. Wade, the court not only struck down a Texas law but wrote a new abortion law in its ruling for the country which stands to this day. On the other hand, if the court simply strikes down a law, that is not activism. If Congress passed a law and the President signed it that all Americans must wear green clothes, would it be activism for the Supreme Court to strike it down as unconstitutional? Obviously not. Now, if the court struck it down and said all Americans must instead wear blue, that would be activism. Laws created by the court is activism.

This also gets to the issue of whether the whole law should be tossed or just the mandate. If one were to toss only part of the law, then the court is engaging in a degree of activism. How? Well, the remaining parts would constitute a law that Congress did not pass and the President did not sign. It would be a mongrel law crafted by the court, not the legislative body of the US. Consider the following sentence: "I am not a racist." The court decides to strike down 'not' but leave the rest intact: "I am a racist." Clearly not what was intended. Best to toss the whole thing and let the Congress, having been chastised for its overreach, try again.