Last Monday, President Obama tapped in to the ongoing debate surrounding his health care plan, warning the Supreme Court not to engage in "judicial activism." Then, Attorney General Eric Holder was challenged by a federal judge to submit a letter acknowledging the right of courts to strike down unconstitutional laws, which he did.
The debate about the power of federal courts has brought into question a practice known as judicial review. Few question the importance of an independent judiciary with the necessary powers to provide a check on the other branches of government. But the questions surrounding the limits of that power are by no means settled.
To understand the limits of judicial review -- what both the president and attorney general described as "restraint" -- one must trace the history of the practice to its roots.
Courts have been reviewing laws since ancient times. But the practice as it is best known in the United States was created in the landmark case, Marbury v. Madison. Some background: In the 1800 election, Thomas Jefferson beat the incumbent, John Adams, ending Federalist control in both the presidency and the Congress, and handing it over to the Democratic-Republicans. Before Jefferson took office, President Adams began creating scores of new federal courts, and appointed countless Federalist judges, commonly known as the "Midnight Judges." This, of course, was an attempt to undermine the power of the newly elected Democratic-Republican government.
Those deliberate attempts to subvert and manipulate the democratic process are the very acts judicial review is meant to protect against. Adams was clearly attempting to diminish the power of the new president and Congress, both of which had been democratically elected.
This was not at all the case when it comes to the Affordable Care Act. The bill was passed shortly after the American people had elected Mr. Obama and a new Congress. And unlike the frantic appointments of the "Midnight Judges," there was no political, personal, or any other gain for President Obama other than pursuing his wish of universal health care.
In short, reviewing laws like the Affordable Care Act is hardly the purpose of judicial review. The Supreme Court is meant to be the final check on government, preventing laws that present a profound risk to our democracy. Striking down a law passed by a newly elected congress and president seems to do nothing to accomplish that goal.
In over 200 years since judicial review was established in the United States, only some 163 laws have been overturned by the Supreme Court. That is perhaps the best evidence of how seldom the practice ought to be used. Should judicial review become so widely interpreted that every law is subject, suddenly we would live in a country where nine unelected individuals determine the laws we live by. That is hardly what the founders had in mind.
If it weren't for President Adams' vicious effort to crumble American democracy, the Affordable Care Act may never have reached the courts. As the nine unelected justices ponder their decisions, one can only hope they remember that crucial reality.
After all, striking down Adams' appointment of the "Midnight Judges" preserved the foundation of our democracy. Striking down the Affordable Care Act, on the other hand, will only leave millions on the street without health care, and hand over the power of those who were elected to those who were appointed.
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