Obama Flip-Flops on Judicial Activism in Gay Marriage Case

In April 2012, less than a week after the Supreme Court concluded three days of oral arguments over the constitutionality of the Patient Protection and Affordable Care Act, President Barack Obama explained to reporters why the Supreme Court's conservative justices had no business overturning his signature law. "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 — and passed law," Obama said. "Well, [the health care law is] a good example."

The Supreme Court considered another "good example" yesterday when it heard oral argument over the constitutionality of Section 3 of the 1996 Defense of Marriage Act, also a "duly constituted…and passed law." Yet when Solicitor General Donald Verrilli stood before the nine "unelected" justices, he urged them to practice something other than judicial restraint.

"The only way" the arguments "for the constitutionality of this statue have any prospect of being upheld," Verrilli told the Court, "is if the Court adopts the minimal rationality standard of Lee Optical." Lee Optical refers to the 1955 case of Williamson v. Lee Optical, where the Supreme Court unanimously upheld a state regulation under the most lenient standard of judicial inquiry available: the rational-basis test. "It is enough," the Court held in that case, "that is might be thought that the particular legislative measure was a rational way" for lawmakers to proceed.

As Solicitor General Verrilli understands very well, rational-basis review by the courts is usually the equivalent of a rubber-stamp in favor of government power, precisely why he stressed that the DOMA case presents "a different kind of situation" than Lee Optical.

It was an atypical performance by the Obama administration, which is normally in the habit of reading federal power in the broadest of terms. For instance, in the main brief the federal government submitted in last year's health care case, it asserted, "Congress had far more than a rational basis for concluding that" the absence of health insurance "has a deleterious effect on interstate commerce."

But unlike the health care case, where the White House wanted to save the law and therefore sought maximum deference from the justices, the federal government in this case wants to see DOMA struck down and therefore favors more aggressive judicial tactics—hence the lobbying effort against relying on Lee Optical as a relevant precedent.

This is not what I would call an internally consistent legal philosophy, but that impediment has not stopped the White House before.