The RedState article I linked to in the previous post set me thinking. The author, “streiff”, drew an analogy between Supreme Court Justices and referees in sports. This, in conjunction with Obama’s claims about “judicial activism”, reminded me of the old joke about three baseball umpires talking about making calls:

Umpire 1: “I calls ’em like I sees ’em.”

Umpire 2: “I calls ’em like they is.”

Umpire 3: “They ain’t nothing till I calls ’em”

The thing is, the Supreme Court is all three umpires at once. If five of them see it as unconstitutional, then it is unconstitutional. And it’s not known if it’s constitutional or not until they rule on it.

Also, I don’t see how it’s ever possible to know if they’re being “activist judges” or not. Supposing they strike down the health-care law, the ruling will be couched in terms of how they think it violates the Constitution. Now, since this is all a matter of interpretation, it’s impossible to know if they really interpret the Constitution that way, or if they just struck it down because they oppose liberal laws. How can you ever prove the charge of “judicial activism”? Hey, you judges and lawyers out there, I’m asking.

The other cool thing in the RedState article is its mention of the case of Marbury v. Madison. It was the first time that a law was declared unconstitutional. It’s a fascinating case for a host of reasons, but of interest at the moment is that Thomas Jefferson thought that it was an instance of “activist judges”–he didn’t use that phrase, but that was roughly his sentiment. He said it made the Constitution “a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.” So, Obama would be in good company if he opposed judicial review.