Obama’s Law Review

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Obama’s Law Review

Those of you who have never been to law school may not be familiar with the concept of a law school’s law review.  A law review is a particular law school’s periodical, normally published by a student-run editorial board, and containing scholarly works on legal subjects.  The more prestigious the law review, the more prestigious names will submit articles for it, and vice versa (the more prestigious names you have writing in your law review, the more prestigious your law review becomes).  The actual content of law review is usually written by law professors, judges, and lawyers.  The student members of the law review will occasionally write “notes” or “comments,” but they are usually much shorter and do not constitute the bulk of the periodical’s content.  Because of the quality of its legal analysis and authorship, it is not uncommon for courts to quote law review material as persuasive authority in judicial decisions.

Membership on the law review is highly sought after by law students, if for no other reason than it differentiates them as the best and brightest among their peers, and potential employers view it accordingly.  You have to be invited to be on law review, based on things like class ranking, writing skills, etc.  In most schools, you at least have to enter a writing competition (called “writing on” to law review), and have to be in some top percentage of your class (called “grading on” to law review).  Making law review, for most law schools, is the most prestigious accomplishment a law student can achieve.  (Full disclosure: your humble author was on the Cumberland Law Review.)

Why this primer on law review?  Because our President of the United States used to be president of another institution: the Harvard Law Review.  You may have heard of Harvard—it has one of the most prestigious law schools in the nation. And one of the most prestigious law reviews (the Harvard Law Review).  He also taught Constitutional Law at the University of Chicago.  Not Contracts, or Civil Procedure, or Estates and Trusts, but Constitutional Law.  Which is what makes the following statement so sand-poundingly stupid:

“Ultimately I am confident that the Supreme Court will not take what would an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.  And I just remind conservative commentators that for years what we’ve heard was 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.”

Your president, ladies and gentlemen, speaking at a press conference yesterday.  Where to begin?  Let’s take it piece by piece:

  1. The Supreme Court overturning legislation is neither unprecedented nor extraordinary.  It started with the case of Marbury vs. Madison in . . . 1803.  It was the Marbury case in which the U.S. Supreme Court established the principle of judicial review, which is the federal courts’ function of reviewing legislation for constitutionality.  Marbury is frequently the first case taught in . . . wait for it . . . Constitutional Law class.  So how often does the Supreme Court declare “laws passed by democratically elected Congresses” unconstitutional?  Well, from 1789 to 2002, the SCOTUS declared 158 congressional laws unconstitutional.  If you assume that state legislatures are also democratically elected, that number increases to almost 1,100.  Hardly “unprecedented” or “extraordinary.”  And those numbers don’t even include the last 10 years.  You would expect a constitutional law professor to know this.
  2. The Patient Protection and Affordable Care Act (ObamaCare) was passed in the Senate by a vote of 60-39.  All Democrats and Independents (2) voted for it, all Republicans voted against it.  It passed in the House of Representatives by a vote of 219-212.  All votes in favor were cast by Democrats.  Thirty-four Democrats and all 178 Republicans voted against it.  So, totaling it all up, 279 Democrats voted for the legislation, 34 Democrats voted against it, 217 Republicans voted against it, and 2 Independents voted for it.  So, if Obama meant that the law was passed by a strong majority of a democratically (small “d”) elected Congress, he’s just plain wrong—by total votes, the law passed, 281-217.  Or, to put it differently, the legislation only passed by a 6% majority.  That’s hardly a “strong majority.”  If Obama meant that the law was passed by a strong majority of a Democratically (capital “D”) elected Congress, he’s right: both houses of Congress were controlled by Democrats, which is why the bill passed.  Even then, however, the “strong” majority was only in the Senate (3-2 majority).  The Democrats won in the Senate by only 7 votes, out of a total of 431—only 2%.
  3. Which brings us to the issue of judicial activism.  Judicial review is not the same thing as judicial activism—even when the legislation being reviewed has massive social consequences, and you are afraid that your signature presidential achievement may be going down the tubes.  We have seen that judicial review of the constitutionality of legislation has been around since shortly after the enactment of our Constitution.  That’s not activism.  Judicial activism is ignoring or overturning prior decisions—established law—or creating new standards or formulas in legal analysis, for the clear (but usually unstated) purpose of achieving a particular result, frequently for political purposes.  This is how the Wall Street Journal put it in an editorial yesterday:

“Judicial activism is not something that happens every time the Supreme Court overturns a statute. The Justices owe deference to Congress and the executive, but only to the extent that the political branches stay within the boundaries of the Constitution. Improper activism is when the Court itself strays beyond the founding document to find new rights or enhance its own authority without proper constitutional grounding.

The classic example, acknowledged by good liberals like Alexander Bickel and Archibald Cox at the time, is Roe v. Wade in 1973. The High Court discovered a right to abortion rooted in a right to privacy that it had invented in Griswold in 1965 from the Constitution’s “penumbras” and “emanations.” Roe overturned 50 state laws and pre-empted a healthy debate that would have reached a different abortion consensus in different states. Our cultural politics has been polarized ever since.

The ObamaCare case is very different, as the oral arguments made clear. The Court is debating the reach of the Commerce Clause and of its own precedents in considering the limited and enumerated federal powers that are explicit in Article I, Section 8.

The Court has often overturned laws that exceeded those powers, including laws that it said exceeded the authority of the Commerce Clause (Lopez in 1995, for example, and Morrison in 2000). Hundreds of other precedents have extolled the value of the constitution’s “dual sovereignty” system—the division of state and federal power. As recently as the U.S. v. Bond case last year, Justice Kennedy wrote that “federalism protects the liberty of the individual from arbitrary power.”

Far from seeking an activist ruling, the ObamaCare plaintiffs aren’t asking the Court to overturn even a single Commerce Clause precedent.


At stake in ObamaCare is whether the High Court will ignore 225 years of constitutional understanding to ratify the federal government’s claim that it can force individual Americans to buy an insurance product—to engage in commerce—so it can then regulate all of the health-care market. The activism charge is a political canard intended to obscure these grave issues and intimidate the Court, and the Justices and the public would do well not to take it seriously.”

Popular opinion, among liberals and conservatives alike, is that the Supreme Court is likely to overturn ObamaCare, in part or in toto.  President Obama appears to be either attempting to (1) use the press to pressure the Supreme Court to rule in his favor, or (2) preempt the fallout from the collapse of his signature achievement by offering the same old excuse we’ve heard for the past three years: “It’s not my fault.  Somebody else screwed it up.”  However, he’s using rhetoric for his excuses that is not only factually untrue, but is so pathetically transparent a first-year law student—the kind he used to teach—could refute it.

If I were Harvard Law School, I’d ask Obama to return his diploma.


Scott Gosnell founded Pros and Cons in 2003. He also has a day job as a practicing attorney in Birmingham, Alabama, which explains his complete irresponsibility with regards to his blogging schedule. In a former life he worked in several churches as a youth minister, where he was forced to do unspeakable things like chew ABC gum (Already Been Chewed), bob for liver (uncooked), and participate in condiment wrestling. Hey, would you look at that – I guess they are speakable. In addition to the practice of law, Scott is a certified law enforcement officer with the Jefferson County Sheriff's Office and the Alabama Historical Ironworks Commission, and a tactical firearms instructor. Scott and his wife, Donna, have three children, Caleb, Hannah Beth, and Austin. He also has a dog named Sierra and a cell phone named Curtis.


  1. Scott says:

    No, no, Paul. It’s not activism if they are upholding a liberal issue. It’s only activism if they are overturning it.

  2. Paul Icolano says:

    So, let me see if I’m getting this right. It’s OK for SCOTUS to practice judicial activism as long as it’s for liberal issues, but not OK if they are overturning them if you’re the current President….

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