In his recent preemptive attack on the Supreme Court, President Obama invoked what he took to be the conservative critique of “judicial activism”:
I’d just remind conservative commentators that for years what we’ve heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint — that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this [the Court’s possibly overturning the Affordable Care Act] is a good example. And I’m pretty confident that this court will recognize that and not take that step.
Those were the least problematic of the president’s Rose Garden remarks, because they rang true in large part. Over the years, many conservatives have indeed criticized the courts—and the Supreme Court in particular—along just those lines. But it’s also true that the debate has changed over that period. To shed some light on such changes, and how the president got it wrong, ultimately, it’s worth a brief look at the underlying issues. (See here for a more thorough discussion.)