JURIST Guest Columnist Craig Jackson of Texas Southern University Thurgood Marshall School of Law says that the criticism of recent comments by President Obama on the role of judicial review in the health care litigation have been unduly harsh…

Did I miss something? Joe Scarborough begins my Tuesday morning with a rant and rave about President Obama’s statement yesterday regarding judicial restraint and the Supreme Court litigation over the Patient Protection and Affordable Care Act. It was apparently egged on by an editorial in Tuesday’s edition in the Wall Street Journal. What the president said was: “[f]or 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. Well, this is a good example. And I’m pretty confident that this court will recognize that and not take that step.”

The Wall Street Journal critique (if the mild form of the term is appropriate) is that Obama, a former president of the Harvard Law Review and constitutional law professor at the University of Chicago, had forgotten the most basic case in constitutional law, Marbury v. Madison, one of Chief Justice John Marshall’s first decisions in 1803. It established the rule since adopted in other countries, that the judiciary has the authority, indeed the duty, to police legislation by Congress to make sure it is consistent with the Constitution. The principle of judicial review was quickly expanded to cover presidential acts, state judicial acts and state legislation such that by the end of the first two decades of the nineteenth century, the Court’s role in American politics had been established.

Yet judicial review was then and remains today, a controversial notion. It depends upon the judgment of members of the federal judiciary, an unelected community sitting and deciding cases in groups usually far smaller than any legislative body whose acts are being reviewed. Marshall’s distant cousin, Thomas Jefferson, believed the Marbury decision would be the ruination of the new country. Presidential candidate Abraham Lincoln declined to accept the second use of the power, the infamous Dred Scott v. Sandford (which held that the Constitution did not protect the rights of blacks in overruling the Missouri Compromise) as a basis for any policy he would pursue if elected president. And Franklin Roosevelt, even before his Court packing strategy after his New Deal reforms were rendered moribund by Court decisions finding much of the Depression-era legislation unconstitutional, toyed with the idea of passing legislation without regard to Supreme Court rulings.

Nonetheless, it is a basic principle of American jurisprudence and to forget or disregard such a rule would be tantamount to Tiger Woods picking up a ball at the edge of a bunker and replacing it in the green without a penalty. It does not happen. Neither Lincoln nor Roosevelt ever got to the point where they openly defied a ruling by the Supreme Court. That the Court can overturn congressional legislation is basic. So what was the president saying on Monday? It certainly was not that he had forgotten the basic rule. It had more to do with arguments that have been lobbed back and forth over judicial review, advising judicial restraint, for over two centuries by some of the more prominent jurists and scholars of their generation, not the least of which would be the late Chief Justice William Rehnquist. In a 1976 article in the Texas Law Review, Justice Rehnquist (before becoming Chief Justice) wrote:

Once we have abandoned the idea that the authority of the courts to declare laws unconstitutional is somehow tied to the language of the Constitution that the people adopted, a judiciary exercising the power of judicial review appears in a quite different light. Judges then are no longer the keepers of the covenant; instead they are a small group of fortunately situated people with a roving commission to second-guess Congress, state legislatures, and state and federal administrative officers concerning what is best for the country. Surely there is no justification for a third legislative branch in the federal government. … Even if one were to disagree with me on this point, the members of a third branch of the federal legislature at least ought to be elected by and responsible to constituencies, just as in the case of the other two branches of Congress.

This is not an unreasonable position to take and though I would differ when it comes to the subject of civil rights and civil liberties, courts ought to temper their use of judicial review with some discretion. Though many observers, including the Wall Street Journal, believe the issue in the health care litigation has to do with the wisdom of an individual mandate and its effect on individual liberty, from a constitutional standpoint those issues are not before the Court. The actual issue is simple — does Congress have the authority under the Commerce Clause to regulate health care by requiring minimum insurance coverage for all Americans. Love the law or hate it, I believe the answer is yes. Reasonable people disagree. Yet, as pointed out by the late Herbert Wechsler, the Columbia University constitutional scholar, in a 1959 article:

A principled decision … is one that rests on … reasons that in their generality and their neutrality transcend any immediate result that is involved. When no sufficient reasons of this kind can be assigned for overturning value choices of the other branches of the Government or of a state, those choices must, of course, survive.

Congress at the time of passage believed that it had the authority, and the argument for that position is strong according to past decisions of the Court. The president of course agrees and is certainly not stepping out of mainstream constitutional law discourse to suggest that the Court exercise a little discretion when dealing with decisions by a political majority. This alone refutes the claim by the Wall Street Journal and the critics of the day regarding President Obama’s regard for Marbury v. Madison.

But from the standpoint of the law under review, some members of the Court seemed preoccupied in oral arguments last week, with a limiting principle to keep Congress out of — I suppose — everything. Yet the Court, in past cases, has not come up with a viable approach that describes how that limiting principle can be implemented neutrally by a federal court. Absent such a principle, the Affordable Care Act is a rational assertion of the power that can be undone with a political majority in the two houses of Congress — the prescription often suggested by conservatives throughout the years to those clamoring for social change.

It’s time for conservatives on and off the Court to take the same medicine.

Craig Jackson is a Professor of Law at Texas Southern University Thurgood Marshall School of Law. He teaches and researches on constitutional law after 9/11, First Amendment law and international law.

Suggested citation: Craig Jackson, Judicial Restraint and the Health Care Litigation, JURIST – Forum, Apr. 5, 2012, http://jurist.org/forum/2012/04/craig-jackson-judicial-review.php.