In a press conference on Monday, President Obama said, “I’d just remind conservative commentators that for years, what we’ve heard is the biggest problem on the bench was judicial activism or the lack of judicial restraint, that an unelected group of people would somehow overturn a duly constituted and passed law. And I’m pretty confident that this court will recognize that and not take that step.” Obama went on to say that the court would take an “unprecedented, extraordinary step” if it overturns the law because it was passed by “a strong majority of a democratically elected Congress.”
Set aside the fact that the House, despite a huge Democratic majority, passed the Patient Protection and Affordable Care Act by a margin of 219-212, hardly a “strong majority.” In fact, it barely qualifies as a plurality. Let’s turn instead to the substance of what the president said.
Obama, a former community organizer who is perhaps unaware of the finer points of the law, might want to acquaint himself with an obscure 19th century case, Marbury v. Madison, which established the doctrine of judicial review and grants federal courts the power to void acts of Congress that are in conflict with the Constitution. What Obama describes as “unprecedented” has, in fact, been done countless times since 1803.
Then there’s Obama’s confusion about judicial activism. It is not, as he insists, simply the act of overturning an existing law; it is when judges allow their personal views about public policy, and not the Constitution, to guide their decisions and often invent new rights out of thin air. For Justices to invalidate a law they deem to be unconstitutional is precisely what the Supreme Court is supposed to do. (“No legislative act … contrary to the Constitution, can be valid,” is how Alexander Hamilton put it in Federalist #78.) If one takes Obama’s words literally, he believes an unjust and unconstitutional law, if passed by a strong majority of a democratically elected Congress, cannot be overturned.
What the president said, then, was so ill-informed, so ignorant, that people assumed he must know better. There’s no way we can know. But whatever the case, this has been quite a bad stretch for the president. His comments about the Supreme Court, when combined with his astonishingly dishonest attack on the House GOP budget (see here for more), portray a president who is living in a fantasy world — a place where facts and history are inverted, lies become truth, where everything is subordinated to ambition and you simply make things up as you go along. Nietzsche referred to this mindset as the “will to power.” In American politics it’s known as The Chicago Way.
I don’t know what the political effect of all this will be. But intellectually, this is the week where Barack Obama jumped the shark. In a deep, fundamental way, he is no longer a serious man. Nor an honest one. His public words are now purposefully bleached of truth. And that is a painful thing to have to say about an American president.
So 2009......