Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress. And 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 is a good example. And I’m pretty confident that this Court will recognize that and not take that step.This caused the 5C appeals court to order DoJ lawyers to declare whether the Obama administration believes in judicial review.
When asked again about it, Obama backtracked with this:
And the point I was making is that the Supreme Court is the final say on our Constitution and our laws, and all of us have to respect it, but it’s precisely because of that extraordinary power that the Court has traditionally exercised significant restraint and deference to our duly elected legislature, our Congress. And so the burden is on those who would overturn a law like this.Obama also gave a nonsensical explanation of supreme court history of courts ruling economic programs unconstitutional.
The relevant law here is very simple, and ought to be taught in the first week of law school. The US Constitution is the supreme law of the land, and the three branches of the federal govt (executive, judiciary, legislative) all take oaths to uphold it. The court does have the power to rule on the constitutionality of a case, but it does not have the final say because the President and others take their oaths to the Constitution, not to the Supreme Courts interpretation of the Constitution.
This was explained by a recent federal appeals court opinion:
[footnote 43] Under the Constitution, the President may decline to enforce a statute that regulates private individuals when the President deems the statute unconstitutional, even if a court has held or would hold the statute constitutional.The New Yorker columnist Jeffrey Toobin objected that this “is not how it works”, but he is wrong, as explained by law professors
Obama and Toobin are not the only ones to be confused about judicial supremacy. Phyllis Schlafly wrote a whole book explaining what is wrong with it, The Supremacists — The Tyranny of Judges and How to Stop It.