Obama vs. the high court

By JONATHAN GURWITZ

New York Times News Service

Let’s play “Name the Judicial Extremist.”

Who said that “activist, unelected judges believe they know better than the American people about the direction the country should go”? That was Focus on the Family founder James Dobson in 2005.

Whose campaign issued a position paper that stated, “The repeated failure of the executive and legislative branches to use their own constitutional powers … has effectively rendered the unelected justices of the Supreme Court with the final word on the meaning of the Constitution”? That was Newt Gingrich in 2011.

Who wailed about an unelected group of people taking “what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress”? That was President Obama last week.

Not much difference, is there? And it would be hard to pack more cynicism, more deceit and more bull hockey into one comment than Obama did.

Begin with “unprecedented.” Actually, the precedent for judicial review was established 209 years ago in the seminal case of Marbury vs. Madison.

Next there’s “extraordinary.” In fact, it is completely ordinary. According to the Congressional Research Service, the Supreme Court had on 158 occasions through 1997 held that acts of Congress were in whole or in part unconstitutional.

Then there’s the “strong majority.” In the case of Obamacare, the White House had to use every inducement and payoff conceivable to muster the bare minimum of votes needed for cloture in the Senate. In the House it squeaked by, 219-212.

The president, mind you, was a constitutional law professor and the editor of the Harvard Law Review. He was the master manipulator behind the chicanery on Capitol Hill. He knows his rhetoric is completely unfactual. But he deploys such falsehoods in the hope that most Americans do not.

At the same Rose Garden press conference, the president also took a poke at conservatives who’ve argued “the biggest problem on the bench was judicial activism.” Is it possible that he cannot distinguish between judicial review, which in cases such as Brown vs. Board of Education struck down laws that violate the Constitution, and judicial activism, in which judges create new laws without any constitutional foundation?

Here, the president may actually not have been deceitful. New research conducted by University of Virginia psychologist Jonathan Haidt suggests he, like many liberals, may be incapable of comprehending the authentic conservative position.

Writing in the May issue of Reason magazine, Haidt builds on genetic and sociological research to explain the existence of “tribal moral communities.” He cites a study that tested how well people across the political spectrum were able to understand opposing political beliefs by asking them to predict how those who hold them might respond to a questionnaire.

“The results were clear and consistent,” Haidt writes. “Moderates and conservatives were most accurate in their predictions. Liberals were the least accurate, especially those who described themselves as ‘very liberal.”’

In other words, moderates and conservatives are better at political empathy. The more liberal you are, the more likely you are to rely on faulty stereotypes to judge differing political beliefs.

This goes a long way toward explaining how members of the liberal establishment responded to criticism of Obamacare. They smeared opponents as heartless extremists “carrying swastikas.” They scoffed at the notion that the constitutionality of the individual mandate could ever be questioned.

Now that it is in doubt, they’ve preemptively attacked the Supreme Court by arguing that no ruling against Obamacare could possibly be made in good faith. And the saddest part of this exercise in political tribalism is that it is being led by a president who once spoke eloquently against the politics of divisiveness.