The primary question under dispute is whether Congress has the power under the Constitution to compel every private citizen to purchase a particular commercial product (health insurance) -- an unprecedented move made by Pres. Barack Obama's health care law. Defenders of Obamacare claim that Congress does have this power, so the Court should not strike down the legislation as unconstitutional.
Yet many of these Obamacare defenders -- including Obama himself -- think the Court was right to strike down all of the democratically-decided state laws on abortion in Roe v. Wade and to reaffirm that position in subsequent rulings. They think that state legislatures do not have the power under the Constitution to prohibit or even significantly limit elective abortion.
Look at these two cases. To say that state abortion bans are constitutionally impermissible is absurd. There is simply no support for a right to abortion on demand in the text or history of the Constitution. Indeed, states were banning abortion at the same time (the latter half of the 19th century) they were approving the very constitutional provisions the Court later said precluded bans on abortion!
On the other hand, to say that Obamacare violates the Constitution seems quite plausible. The Constitution limits Congress (as opposed to state legislatures, which are afforded much greater freedom under the Tenth Amendment) to certain enumerated powers, which on the face of them do not include the power exerted under the Obama health care law. Obamacare is an unprecedented assertion of federal government control.
Speaking recently about the possibility of the Court striking down his signature accomplishment, Obama urged "judicial restraint" and said that the Court should not "[overturn] a law that was passed by a strong majority of a democratically elected Congress." (Obama later clarified that he does not deny the Court's power of judicial review.)
Now look at another case. In Gonzales v. Carhart the Court upheld (i.e., did not overturn) the democratically-decided federal law prohibiting partial-birth abortion. Obama fiercely condemned the ruling (and he has called partial-birth abortion a "legitimate medical procedure"). Yet the partial-birth abortion ban passed with large bipartisan majorities and broad public support; Obamacare passed (contrary to the president's claim) by a tiny margin on a purely partisan vote against broad public opposition, leading to huge losses by the president's party in that fall's elections.
Obama claimed that overturning Obamacare would be "judicial activism," saying: "I'd just remind conservative commentators that for years what we've heard is the biggest problem on the bench is judicial activism or a lack of judicial restraint -- that an unelected group of people would somehow overturn a duly constituted and passed law. Well, here's a good example."
No, that's not what judicial activism is -- it is not the same as judicial review. Properly understood, judicial activism is the substitution of personal policy opinion for the Constitution. It is making law rather than faithfully interpreting and applying it. As the Wall Street Journal explains:
Judicial activism is not something that happens every time the Supreme Court overturns a statute. The Justices owe deference to Congress and the executive, but only to the extent that the political branches stay within the boundaries of the Constitution. Improper activism is when the Court itself strays beyond the founding document to find new rights or enhance its own authority without proper constitutional grounding.Judicial activism is the philosophy that seems to characterize the president's various judicial opinions. Obama wants the Court to strike down constitutional laws (e.g., any conceivable limits on abortion) and uphold unconstitutional ones (Obamacare). He favors partial-birth abortion, so he wants Court-mandated partial-birth abortion on demand. He favors unprecedented federal government control over health care, so he wants the Court to allow it.
In a 2001 interview, Obama advocated "break[ing] free from the essential constraints that were placed by the Founding Fathers in the Constitution." Not via the American people deciding to amend the Constitution -- which is how our Republic's governing document may be legitimately changed -- but by a handful of unelected judges deciding to impose their own, more "enlightened" vision in place of the Constitution, without the consent of the governed.
That is the radical Obama approach. It's part of what is at stake in November.