Many conservatives have argued that judicial review is an illegal concept created by lawless and unelected justices of the Supreme Court. This argument, in fact, was a standard assertion among Southern conservatives who mobilized to resist the Court's ruling in Brown v. Board of Education of Topeka, Kansas.
Furthermore, several conservative politicians have recently embraced policies that would nullify the concept of judicial review, if implemented. Newt Gingrich, Rick Perry and Ron Paul have all proposed measures that would radically alter the Court's judicial review powers and that give Congress the authority to disregard Court rulings. Today, however, conservatives applaud judicial review as a safeguard for individual liberty and a check against the central government.
Why the sudden shift? Last week, the conservative bloc on the Supreme Court appeared ready to invalidate the Affordable Care Act -- even if it meant departing from recent precedent. Justice Scalia, whose questioning of government counsel was particularly harsh, authored a very liberal opinion regarding the government's ability to regulate commerce in Gonzales v. Raich. In that ruling, the Court upheld federal authority to criminalize the use of homegrown marijuana for medical purposes -- even though it was clearly not purchased on the open market, or "in commerce." Now, Scalia, displaying an utter lack of concern for his own prior opinion, seems prepared to nullify a comprehensive regulation of health and insurance markets -- clearly items of interstate commerce (see this post for a discussion of the ACA and the Constitution).
President Obama has recently criticized the oral arguments, arguing that the Court should not invalidate the ACA. Obama's critique employs conservative language to oppose judicial activism and to discuss the "danger" of an unelected tribunal invalidating legislation or second-guessing Congress. Liberals have opposed this set of arguments in the past, particularly with respect to fundamental rights and equal protection. But the commerce power is specifically delegated to Congress, and Congress has greater expertise than judges regarding the policies needed to protect interstate commerce.
Despite the usual show of deference to Congress on economic policy, the five conservatives seemingly presume that the ACA violates the Constitution. Rather than requiring the plaintiffs to prove that the insurance mandate is not rationally related to commerce, the conservatives apparently believe the government should meet this burden instead. This is not judicial deference. It is judicial overreach.
Although conservatives have made alarmist claims of judicial activism in the past, today, they say that Obama should respect the system of judicial review. Yes, a funny thing is happening in the land. It is called "hypocrisy."
UPDATE: The conservative hypocrisy has extended to the United States Court of Appeals for the Fifth Circuit. During a hearing yesterday, a conservative judge demanded that DOJ lawyers say whether Obama believes that federal judges have the authority to invalidate federal statutes. Obama never said that they did not. But the Wall Street Journal and other conservative sources have deceitfully argued that he did).
For other articles on this issue, see:
EARTH TO CONSERVATIVES: Compared With Jefferson, Obama's Comments About the Court Are Harmless