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.