Obamacare judicial activism = good. Marriage ban judicial activism = bad. Huh?

— By Stephen Richer

Many of our colleagues on the right-of-center recently celebrated the halt of gay marriages in Utah.  Here’s Ryan T. Anderson of the Heritage Foundation celebrating the judicial stay and then explaining why it was appropriate:

While most Americans were celebrating the Christmas season, judges were busy redefining state marriage laws. In New Mexico, Utah, and Ohio, judges have usurped the authority of citizens and their elected representatives to discuss, debate, and vote on important policy matters regarding the most fundamental institution of society.  (National Organization for Marriage says something similar here)

Let’s leave the ruled-upon-topic (gay marriage) aside and focus on judicial philosophy.  Anderson clearly thinks that U.S. District Court Judge Robert J. Shelby overstepped his Article III powers when he invalidated Utah’s 2004 Constitutional Amendment to ban gay marriage.  The Amendment had a clear majority of support (66%) from Utahns in 2004, and, Anderson argues, the reversal of this popular measure by the unelected judiciary (Shelby is an Obama appointee) is judicial abuse. 

Ok.  I think courts exist exactly for the reason to protect individual rights from the majority vote, but of course not everyone does (shucks).  Andersen is far from alone in thinking that the courts should be deferential to legislative bodies and ballot measures.

Now let’s look at another legal matter: Obamacare.  Heritage Foundation was and is one of the loudest and most powerful critics of Obamacare.  Here’s the special website section dedicated to Heritage’s loathing of Obamacare.  Heritage’s current Obamacare work is dedicated to repealing the act, but Heritage also played a large role in the constitutional challenge to Obamacare.  Indeed, if you read Josh Blackman’s book on the origins of the Obamacare constitutional challenge, you’ll learn that Heritage scholars such as Todd Gaziano were some of originators of the challenge.  For example, this 2009 Heritage Legal Memorandum argues that the individual mandate is unconstitutional.  Implicit in that is Heritage’s call for the court system to strike down Obamacare as unconstitutional.

Hmmm…  Obamacare was created and passed by the democratic, elected branches of the country (admittedly, the process was expedited and non-traditional).  According to Anderson’s logic, would a ruling striking down Obamacare be another judges usurpation of “authority of citizens and their elected representatives?”  Isn’t this a double standard?

I understand people who support an active court system that should strike down laws — no matter how popular they may be — if they are unconstitutional (this is the camp I fall into).  I also appreciate the consistency of people who think the courts should always be deferential to the elected branches, and that courts should be more for matters of interpretation than constitutionality.  I also get people who think the court system has/had a role to play in both matters (Obamacare and gay marriage), but disagree with one or both of court’s rulings.

But I don’t get the judicial view of people like Anderson who denounce courts as usurping popular will in one instance, and in another instance, stand behind an organization (Heritage) that asked the courts to strike down a law created by popular branches.**  This seems like a judicial ideology of “take cases and be active on stuff I don’t like, but defer to the elected branches when I like what they produce.”  And that doesn’t make for a reasonable judicial view.

Anderson is not the only one who thinks this way, but it befuddles my need for some level of consistency.  Help.

**Anderson did not do the Obamacare legal work of Heritage, though I seriously doubt I’m wrong in imputing that Anderson supported Heritage’s work.




2 thoughts on “Obamacare judicial activism = good. Marriage ban judicial activism = bad. Huh?

  1. Chris L.


    It seems like that because that is exactly what it is. The definition of a liberal activist judge is one that makes a ruling a conservative activist does not like; a conservative activist judge is one that makes a ruling a liberal activist does not like :).

    Now, as for Mr. Anderson and Heritage, note that one of Heritage Foundation’s largest sustained financial supporters is the DeVos family who is also a very large financial backer of the Family Research Council. In fact, Anderson is identified with Heritage’s DeVos Center for Religion and Civil Society. In the world of Washington “policy shops” and think tanks money talks—denials not withstanding.

  2. Pingback: It’s not government that has redefined marriage — it’s the people who have | The Purple Elephant

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