by Jeremy Leaming
Pundits, especially those on the Right, claim President Obama’s recent comments that the Supreme Court should not lightly invalidate a law regulating commerce – in this case the Affordable Care Act – reveal a former constitutional law school professor who doesn’t understand judicial review. (Or according to this Washington Post piece, the president was employing language intended to mislead.)
Actually the president’s words, despite the over-the-top reactions from pundits, were not terribly difficult, even for non-lawyers, to discern. Obama was merely pointing out that the Supreme Court has not, and should not, easily invalidate laws by Congress, especially those that regulate commerce. Attorney General Eric Holder in a letter to a federal appeals court, also said the president’s comments were grounded in principle, not hyperbole.
In a guest column for the Jurist, law school professor Craig Jackson takes note of commentary from MSNBC’s Joe Scarborough and The Wall Street Journal’s editorial page blasting the president’s comments, and argues that Obama had not “forgotten the basic rule,” of judicial review.
Instead Jackson says the president’s comments “had more to do with arguments that have been lobbed back and forth over judicial review, advising judicial restraint, for over two centuries ….” Plenty, Jackson, notes has been written about the need for federal courts to show restraint when considering challenges to laws passed by Congress.
“The president of course agrees and is certainly not stepping out of mainstream constitutional law discourse to suggest that the Court exercise a little discretion when dealing with decisions by a political majority,” Jackson write.