President Obama noted on Tuesday that, were the Court to take the “unprecedented” step of striking down the Affordable Care Act (ACA) as unconstitutional, it would be engaging in exactly the kind of “judicial activism” that conservatives have been decrying for the better part of half a century. This has prompted a flurry of pearl-clutching and overblown criticism, much of it disingenuous and strictly partisan – which is of course not news. Obama clarified that his point was that it would be unprecedented – unheard of since Wickard v. Filburn – for the Court to vitiate the modern understanding of the Commerce Clause in order to declare unconstitutional a law regulating the essentials of an industry that is essential to the American economy. If by “judicial activism” one means “thwarting the will of democratic majorities” – and this is what we’ve been told it is, by critics of the practice – then the Justices voting to overturn ACA would certainly look like activists.
What is news is that someone has reached for the ridiculous interpretation of Obama’s remarks – that is, that he somehow said that judicial review itself is illegitimate – and, furthermore, that someone is Judge Jerry Smith of the 5th Circuit, who in a separate ACA case demanded that DOJ lawyers write a report explaining Obama’s remarks, clarifying whether or not he thinks that federal courts have the power of judicial review. (In a nice touch, he specified the length and spacing of the report as well.) It’s not clear how Judge Smith thinks he has the jurisdiction to make such a demand, or why he thinks a political speech by the President is germane to his case. It will be interesting to see whether the Justice lawyers comply with this, well, unprecedented demand.