- - Monday, June 11, 2012


A curious chorus of Obamacare devotees is being heard today to claim that only an audaciously overactivist Supreme Court could rule unconstitutional Congress‘ latest attempt to manage the private enterprise of health care. Under the Constitution, and since the inception of our nation, the determination of whether an act of the legislature can pass constitutional muster has been the fundamental role of the Supreme Court.

Exercising this authority, the court has rendered landmark decisions affecting civil rights, voting rights, the power of government to affect speech, and limitations on the reach of national government in our federalist system. By design, the court performs this role without reference to what is popularly favored or not.

That is precisely why the Constitution establishes the judiciary as an independent equal to the political branches. That the law in question may reflect the will - and votes - of a majority in Congress is of no consequence to the determination of its constitutionality.

The Constitution is the will of “We the People” and is law supreme to any passed by the legislature. The court thus stands as guardian between conflicts in laws passed by the Congress and the terms of the Constitution itself, exercising the power to, as Alexander Hamilton explained in Federalist Papers 78, keep the legislators “within the limits assigned [by the Constitution] to their authority.”

Our founders had the wisdom to recognize that a popularly elected legislature could nonetheless become a tyrant. We should renew respect for, and not denigrate, the check on political power that the authority of the Supreme Court represents.

Recognition that perhaps the most constitutionally dubious provision in this law mandates that individual American citizens engage in a specified commercial transaction exposes this anticipatory criticism of the court as an ill-conceived effort. It ignores how truly beneficial to individual liberty the constitutional role of the courts is and makes all the more a matter of concern the suggestion that the health care legislation should somehow be beyond judicial review.

Not only will seeking to change the court from being a constitutional guardian to mere subject of an elected majority fail, but given the fundamental institutional interests at stake, it is likely to drive justices universally to make clear that the court will exercise, and thereby preserve, its constitutional role.

The erroneous commentary on the court’s constitutional function irresponsibly calls its integrity into question when there is absolutely no basis for doing so. Indeed, the suggestion that the court would be acting politically if it invalidates a law that a political majority favored is patently absurd.

It is a core function of the court to review acts of the legislature and determine whether the Constitution will abide them or not. As has been the rule since the court’s 1803 decision in Marbury v. Madison, the court wields the final authority to say what the law is.

Doing so is not improper judicial activism, but simply the court performing the role, as Chief Justice John G. Roberts Jr. analogized it, of calling the constitutional balls and strikes. That it is doing so in a World Series-level case rather than a routine spring training game changes its role not at all.

Ironically, the questioning of the court’s role stands in contrast to the more typical political activist tactic of trying to use the courts to affect a result or a change that lacks sufficient legislative or political support. Witness the 2000 recount effort to have courts perform a legislative role and fashion rules where there were none concerning what ballots were votes. Or lawsuits to disable states from requiring some basic proof that a prospective voter is the person he claims to be. Or having the courts run prisons, run school programs and take over other governmental functions squarely in the province of elected bodies and officials who chose not to act as proponents in those cases.

But this time the affront to the Constitution goes too far because the separation of powers is the rule in danger of being bent and the fundamental authority of the court is what is being questioned. As we recently paused to remember on Memorial Day those who sacrificed all to preserve that Constitution, it is a disservice to their memory to suggest that this law, or any law, should be beyond the court’s power to review, and if unconstitutional, invalidate.

George J. Terwilliger III is a partner at White & Case LLP in Washington and formerly served as deputy attorney general of the United States.

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