ABA President’s Statement on President Obama’s Remarks on Judicial Review

I have noticed a tendency of some commentators (such as Larry Tribe) to discount the gross inaccuracy of President Obama’s remarks on Monday concerning judicial review, by pointing to the substantially revised views he expressed on Tuesday.  On the NewsHour, my colleague and friend Mike Seidman went so far as to insist that the President’s statement on Monday was entirely correct.  To the contrary, I take the President’s Tuesday statement, along with his felt need to make it, as an implicit admission that his Monday statement was wrong and in need of prompt correction.

I am therefore pleased to see that the President of the American Bar Association reads these two statements the same way I do, and does not attempt to throw the President’s statement on Monday down a memory hole.  But Mr. Robinson goes farther to also imply that a decision invalidating the Affordable Care Act would not necessarily serve as a “good example” of “judicial activism or a lack of judicial restraint.”  He appears to be reacting to and rejecting the obvious ongoing effort by supporters of the ACA or the President (or both) to politicize any adverse ruling by the Court in advance of reading its legal basis.  But his focus is on the President as an “elected official” and “leader,” rather than on these commentators.


Re: President Obama’s remarks on upcoming U.S. Supreme Court ruling on national health care

President Barack Obama’s remarks on Monday speculating about the Supreme Court’s potential decision in the health care legislation appeal are troubling. Particularly worrisome was his suggestion that the court’s decision in this case could serve as a “good example” of what some commentators have cited as “judicial activism or a lack of judicial restraint” by an “unelected group of people.”

We’re gratified that the president recast his remarks Tuesday. He clarified appropriately that “the Supreme Court is the final say on our Constitution and our laws, and all of us have to respect it.”

Federal judges are, by design, not elected officials. Article II of our Constitution reserves for the president the authority to appoint Supreme Court justices and all other officers of the United States with the advice and consent of the Senate. In fact, President Obama himself has offered more than 123 nominations for Article III judgeships, including two lifetime appointments to our nation’s highest court.

The legitimacy of judicial review was settled more than 200 years ago in the landmark case Marbury v. Madison, which established such review as a key safeguard of the separation of powers doctrine. The Framers of our Constitution clearly understood that an independent judiciary is critical to the maintenance of our democracy and freedom.

It is incumbent on all of our elected officials—including those aspiring to hold office—to continually demonstrate that the courtroom is not a political arena. It is a measure of a free society that individuals are able to openly disagree with court decisions, but we should expect our leaders to refrain from partisan statements aimed at judges fulfilling their constitutional role and responsibilities.

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