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When it comes to the issues, it’s much harder than it should be to find substantive differences between President Obama and Mitt Romney. One potential difference is in the two candidates’ potential Supreme Court nominations. This is important; there will almost certainly be some turnover in the next four years. Justice Breyer is a spry 73, while Scalia and Kennedy are 76, and Ginsburg is 79. That’s four potential picks right there. But again, the differences between Romney and Obama’s possible selections are overhyped. Both men would seek the same dominant trait in their nominees: deference.
If the Supreme Court’s health care ruling showed us anything, it is that the Court, contrary to claims by partisans both right and left, will do almost anything to defer to the other branches. Some pundits, such as New York Times columnist David Brooks, praised  what they see as judicial restraint on the part of Chief Justice John Roberts, who argued that the mandate falls within Congress’ power to “lay and collect Taxes.” Progressives and conservatives alike claim to disdain judicial activism.
Of course, both sides’ cries of judicial activism are really shorthand for “I disagree with this decision.” Many cases derided as judicial activism have in fact involved the Court striking down unconstitutional actions by the other branches.
All judicial activism is not the same. The Court should not legislate from the bench. But the very core of the Supreme Court’s job description is to say “no” when Congress passes blatantly unconstitutional legislation, such as restrictions on political speech or a health care bill that defines inactivity—failing to buy health insurance—as “interstate commerce.”
Judicial deference to the government’s other branches is routinely touted as virtuous. We saw a great example of this in Elena Kagan’s Senate confirmation hearing. As she told the Senate Judiciary Committee:
“I would go back I think to Oliver Wendell Holmes on this. He was this judge who lived in the early 20th Century -- hated a lot of the legislation that was being enacted during those years but insisted that if the people wanted it, it was their right to go hang themselves. Now, that‘s not always the case but there is substantial deference due to political branches.”
Justice Kagan is correct that the Court shouldn’t decide cases based on the Justices’ personal views of what constitutes good policy. But they do have an obligation to base their decisions on the limits placed upon the federal government by the Constitution.
No matter which party is in power, Congress and the White House often overstep their constitutional authority. From the political speech restrictions in McCain-Feingold to the Washington, D.C., handgun ban, examples of the Supreme Court striking down unconstitutional legislation are not hard to find. That is the kind of judicial activism we need more of.
Unfortunately, as the health care decision shows, we don’t get enough of it. That is partly because the political branches pick who sits on the bench. No president would nominate a judge who might nullify his administration’s signature achievements. No senator would vote to confirm a judge who might strike down an important bill that she wrote. There is a selection bias favoring judges who will defer to the political branches of government. As Georgetown University law professor Randy Barnett told The Wall Street Journal, “If I want to bet actual money, I’ll always bet the court upholds anything Congress does.”
Instead of looking to Oliver Wendell Holmes, the Court should recall the lesson of the Marbury v. Madison decision of 1803. In that case, Chief Justice John Marshall asserted the Court’s authority to strike down unconstitutional laws. “It is emphatically the province and duty of the Judicial Department to say what the law is,” he wrote in the decision.
The Supreme Court badly needs a dose of judicial activism. But there is a difference between activism motivated by political concerns and activism motivated by constitutional ones. Justices should not base their decisions on the merit of a law, but they obviously should base them on a law’s constitutionality. When Justices seek ways to stretch the meaning of the constitution to the point of absurdity, as Roberts and others have done, they are not doing their job.
That doesn’t mean they should legislate from the bench. It means they need to say “no” when Congress and the president go too far. A weak court isn’t virtuous; it’s just weak.