Supreme Court

If Liberals Think Striking Down ObamaCare Equals Judicial Activism, What About Striking Down the Defense of Marriage Act?


Almost immediately after the Supreme Court finished hearing oral argument in the legal challenge to the Patient Protection and Affordable Care Act in March, numerous liberals began urging the Court to practice judicial restraint, defer to the judgment of the elected branches of government, and vote to uphold ObamaCare. Even President Barack Obama got in on the action, telling reporters, "Ultimately I'm confident 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."

Writing at The Originalism Blog, University of San Diego law professor Michael Ramsey wonders if those same liberals will still embrace the idea of judicial restraint if the Supreme Court decides to weigh in on the constitutionality of the Defense of Marriage Act, another controversial law enacted by democratically elected lawmakers. As Ramsey writes:

It's hard for me to see differences between the two cases that should matter for advocates of judicial restraint (meaning strong deference to the elected branches).  Both involve substantial policy issues; both involve constitutional claims that lack consensus support.  One could say that the executive branch under President Obama doesn't support the constitutionality of DOMA—but the executive branch under Presidents Clinton and Bush did so, and I wouldn't think advocates of judicial restraint should want the potential constitutionality of a federal law to rise and fall with changes in the occupant of the presidency.  One could say that the DOMA case involves individual rights rather than structural rights, but it's not obvious why that should matter to advocates of judicial restraint, and in any event the structural provisions at issue in the health care case—Congress' enumerated powers—were designed to protect individual rights (indeed, they were seen as a centerpiece of individual rights by many framers).

So it seems that liberal advocates of judicial restraint in the health care case should now stand ready to argue that the First Circuit must be reversed and Congress' constitutional judgment on DOMA be respected.  It's a fair test, I'd say, of how serious that advocacy ever was.

Read the whole post here. Back in June 2011, I warned liberals about the future dangers associated with embracing judicial restraint in the health care case. You can read that here.

NEXT: Do Libertarians Need to "Stop Being Nuts"?

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Liberal stock answer: Well that’s different.

    1. beat me to it

  2. “Judicial activism” has NEVER meant a thing more than “we hate this opinion” to anyone.

  3. I hopped on HuffPo and posted a paraphrase of Obama in the comments below the DOMA story that went something like: “So in an unprecedented, extraordinary step, the judiciary is poised to overturn a law that was passed by a strong majority of a democratically elected Congress. That an unelected group of people would somehow overturn a duly constituted and passed law must be eating at the President.”

    Most responses harped on my apparent ignorance of Marbury v. Madison, the role of the judiciary, etc.

    The weeping and gnashing of teeth that ensued when I posted and attributed Obama’s quote was hilarious. They’re fun to fuck with.

    1. I used to argue with the same people about the hypocrisy of Liberal thought and gave up because their arguments were always so completely empty.

      “It’s different when we do it” or “but we just want to help people (even though we never do and it never works out that way” were the common answers. For instance, when you ask them why we should have universal healthcare when it will just make healthcare more expensive from everyone on average, their answer is “but people are getting cancer and are getting denied coverage!!!” which had nothing to do with my point, but as usual allows them to change the argument to get sympathy points.

      I’m over it.

    2. Well played sir.

    3. Comment of the day.

  4. Thou shalt not gore mine ox.

  5. I wouldn’t think advocates of judicial restraint should want the potential constitutionality of a federal law to rise and fall with changes in the occupant of the presidency.

    I’m one of those who doesn’t think a President has any obligation to defend the Constitutionality of a law that he thinks is unconstitutional. In fact, he probably has an obligation not to do so.

    1. No, only SCOTUS can read the Constitution through the special penumbra-detecting goggles. The President isn’t issued a pair.

      1. If SCOTUS tells the government that it can’t do something, based on some “penumbra”, that’s fine with me.

    2. Agreed. The President swears an oath to uphold the Constitution. That means the President has an obligation to NOT defend a law that he thinks is unconstitutional.

  6. DOMA is constitutional, or the Constitution itself is unconstitutionl:

    Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

    Article IV, Section 1

  7. “It’s a fair test, I’d say, of how serious that advocacy ever was.”

    C.) Not Very Serious.

    What do I win?

  8. “It’s a fair test, I’d say, of how serious that advocacy ever was.”

    Ramay’s argument relies on two dubious postulates. One, that liberal support for “judicial restraint” was ever a principle to the Left. Rather, it has been a tactic to trip up conservative jurists with a misleading definition of “restraint” that leaves decisions liberals favor but have little textual support intact. Two, that it is possible to shame liberals for hypocrisy. They do not recognize it, as they have no past. Every tactical decision they make as to how to defend a position has nothing to do with how they defend any other position. Liberals are entirely in the moment intellectually.

  9. If its good for the people, it will never happen! If its good for corporate America, it will ALWAYS happen. Its the American way!

Please to post comments

Comments are closed.