When the ship's captain shows signs that he doesn't understand the basics of seamanship, such as the difference between heeling and capsizing, you know that something is terribly wrong. Many people got that half-embarrassed/half-frightened feeling when President Obama issued a public warning to the high court in anticipation of its ruling on the constitutionality of the Affordable Care Act of 2010 (aka Obamacare), as WORLD reported:
"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. And I'd just remind conservative commentators that for years what we've heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint-that an unelected group of people would somehow overturn a duly constituted and passed law."
People across the political spectrum were stunned. President Obama, who solemnly swore to "preserve, protect, and defend the Constitution of the United States," knows constitutional law, so he is without excuse for not knowing or for knowingly misrepresenting the basics of the subject. He has a law degree from Harvard and taught constitutional law (well, sort of) at the University of Chicago from 1991 to 2004. So he's familiar with the courts' power of judicial review, i.e., to declare acts of other branches of government or of the states null and void when measured against the fundamental law, the Constitution.
While all three branches must interpret and apply the Constitution, the judicial branch has a unique responsibility for that and has the final say. As every student in a sophomore American government survey course should know, Chief Justice John Marshall said in Marbury v. Madison (1803) that the job of the court is to "say what the law is" and to decide between the Constitution and a particular law when the two are judged to be in conflict. "This," he wrote, "is of the very essence of judicial duty." In The Federalist Papers No. 78 (1788), another canonical text of undergraduate political studies, Alexander Hamilton affirms the same point.
That's what living together as a free people under law requires. So it is jaw-dropping that the president warned the Supreme Court that it would be acting illegitimately if it were to strike down this law. The reason he gave was that the Supreme Court is "an unelected group of people" and the law in question is "a duly constituted and passed law," even "passed by a strong majority of a democratically elected Congress." President Obama later backtracked, but the Harvard-trained lawyer seemed to be choosing his words very carefully the day before at that Rose Garden press conference.
In a constitutional democracy, judicial review is a judicial activity essential to the judicial branch. Judicial activism, by contrast, is a form of overreach, the court speaking in its own voice and from its own wisdom instead of giving voice to the Constitution and thus to the people's most considered will. This activity of the courts is how we maintain equal liberty under law. Judicial activism is tyranny. When the president publicly denies this distinction we are right to view him with strict scrutiny.