Ultimately, I’m confident that 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. And I'd just remind conservative commentators that 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 passed law. Well, this is a good example. And I’m pretty confident that this Court will recognize that and not take that step.
First of all--if we are actually to take him at his word--Obamacare passed the House by a vote of 219-212, hardly a "strong majority." Secondly, in Marbury v. Madison (1803) Chief Justice John Marshall famously expounded on judicial review, or the basic job description of the Supreme Court in the constitutional architecture. Judicial review is the idea that the Supreme Court has the power under the Judicial Power in Article III to strike down acts of Congress that they find to be unconstitutional (this doesn't mean they are the final arbiters of the constitution). To act as though it is unprecedented for the Supreme Court to strike down an act of Congress--even an act passed by democratic means--is sheer lunacy. Besides, I thought Democrats rather enjoyed the Supreme Court decision in Roe v. Wade that at once struck down laws duly enacted by the people in all 50 states.
And it finally: it says something about the current state of law schools, and Obama himself as a deep thinker of all things constitutional, when he is concerned above all with the processes of democracy and not the substance of a law itself. Odd for a guy who taught about the Equal Protection Clause of the 14th Amendment at the University of Chicago.
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