Last week, President Obama made news when he suggested that it would be "unprecedented" for the Supreme Court to declare unconstitutional a law passed by a "strong majority of a democratically elected Congress." His comments were prompted by the less than favorable reaction of the Supreme Court during oral arguments on the constitutionality of his crowning achievement, the Affordable Care Act, a.k.a Obamacare.
It is no small irony that this most liberal of Presidents is howling like a cut dog about the possibility that "judicial activists" may upend his healthcare plan. Liberals have historically favored an activist judiciary because they liked the social agenda that was being advanced by activist judges. Conservatives, on the other hand, have complained bitterly that liberals were advancing their agenda through the courts, bypassing the people's elected representatives in the legislative branch. Now it appears that Mr. Obama fears the shoe may soon be on the other foot, and already he is complaining that he doesn't like the fit
Judicial activism occurs when judges look to their own views and values to shape the outcome of a case, rather than allowing the laws as promulgated by elected legislators or as affirmed by the people in their state or federal constitutions to dictate the final result. Often, the words of those documents are given meanings other than those originally intended by their drafters because the documents are deemed to be "living" and constantly "evolving." As participants in this "evolutionary process", judges make law from the bench rather than take the law as it comes to them from the people or their elected representatives. The result is that America's principle of representative government is undermined and the people wind up being governed by judicial despots rather than their elected representatives.