There was much ado about not much when President Barack Obama declared last week that it would be "unprecedented, extraordinary" for the United States Supreme Court to overturn the healthcare reform law that passed both houses of Congress with substantial majorities.
Hasn't he ever heard of Marbury v. Madison, Chief Justice John Marshall's famous decision announcing the power of the Supreme Court to review acts of Congress (but not declaring anything unconstitutional in doing so)? One court went so far as to demand that the Justice Department submit a three-page memorandum explaining the president's view.
Obama was a senior lecturer in constitutional law. Trust me, he's heard of Marbury v. Madison. And no one would have to stay up late to explain and justify his statement.
Of course the Supreme Court has the power to declare acts of Congress unconstitutional. But even recognizing that "federalism" is one of those areas (sort of like election law) in which results tend to come before principles on both sides, there are legitimate differences between cases in which the court exercises its power to protect individual rights, and when they do so because Congress has exceeded its power under the Commerce Clause and invaded states rights.
In a famous footnote to the 1938 opinion in Carolene Products (upholding federal regulation of the milk market), the court said a stricter standard of scrutiny should be applied to legislation targeting the rights of "discrete and insular minorities" who lack the protection of the political process.
In such cases, the antimajoritarian court serves to protect minorities against the tyranny of the majority. That is what is at issue, at least from the Obama administration's point of view, in the argument that the Defense of Marriage Act is unconstitutional.
Economic regulation is another matter. The rights of states in such cases are protected by the political checks of federalism — that is, the fact that states are represented qua states in the United States Senate.
Ever since the Supreme Court shifted its position on the power of Congress to enact national economic regulation as part of the New Deal (faced with, yes, political pressure from President Roosevelt, who was threatening to change the rules and "pack the court"), Congress has been afforded much broader authority in the area of economic regulation.
Of course, judicial restraint is one of those concepts that both sides invoke when they don't want the court to act. This time, liberals are for judicial restraint; in the case of DOMA, it's the conservatives who are urging the courts to respect the will of Congress. Even so, as a matter of constitutional theory, they aren't equivalent. Carolene Products supports the Obama administration on both points.
Whether or not you think it's appropriate for the president to comment on pending cases (certainly his Justice Department does a lot more than comment; they advocate, and said much the same thing in their briefs), every member of the Supreme Court has to be aware that a decision striking down the healthcare law would be a political hot potato in an election year. They don't need the president to remind them of what happened when the court stood in the way of popular legislation in the 1930s.
Healthcare reform may not be as popular as the minimum wage and milk regulation, but a decision striking down the law would almost certainly lead to commercials with people suffering from cancer unable to buy health insurance and young people thrown off their parents' policies — because of the Republican court. If the law goes down, it will go down on strict party lines — because all those appointed by a Republican president voted against it. Sure does look like politics.
Striking down the law would thrust the justices and the court into the political process in a way they haven't been since Bush v. Gore. And that is one of the reasons I'm still predicting 6-3 to uphold the law.
Susan Estrich is a best-selling author whose writings have appeared in newspapers such as The New York Times, Los Angeles Times, and Washington Post, and she has been a commentator on countless TV news programs. Read more reports from Susan Estrich — Click Here Now.