The president’s attempt to intimidate the Supreme Court during his April 2 press conference had the distinct smell of desperation. And the excuse Obama gave — that nine unelected judges striking down a law enacted by a popularly elected legislature would be judicial activism — was not just constitutional illiteracy, but a red herring [i].
A glance at Roe v. Wade exposes the hypocrisy of Obama’s posturing. However, caution is in order. The president set a trap by framing the ObamaCare argument in terms of judicial activism. If conservatives take the bait, they’ll find themselves playing defense against an onslaught of hair-splitting over what’s activism and what’s not, when they should be playing offense against the unconstitutional power-grabs of a rogue administration.
To see what they could be in for, conservatives should read John Paul Stevens’ opinion railing against Citizen’s United. This was the 2010 decision that brought down Obama’s wrath by restoring the right of independent campaign speech to corporations. Stevens’ dissent reads like fodder for the Obama spin machine: accusations of judicial activism, calls for obsequious deference to Congress, cherry-picked precedents, and Chicken Little warnings against corporate and foreign money corrupting the electoral process. By conflating independent spending with donations, Stevens even handed Obama the lie about 100 years of precedent which Obama threw in the Court’s face during his State of the Union speech:
Today’s decision takes away a power that we have long permitted these branches to exercise. State legislatures have relied on their authority to regulate corporate electioneering, confirmed in Austin, for more than a century. [ii]