Democrats are still scrambling to undo the self-inflicted damage done by President Barack Obama on April 2 when he attacked the U.S. Supreme Court, apparently in an effort to pre-empt a decision to overturn his 2010 health care law. The latest sign is a rambling Chicago Tribune op-ed by House Minority Leader Nancy Pelosi (D-CA), who writes: "It is with respect for the fundamental American value of judicial review that Democrats wrote and Congress passed health care reform. We believe it is constitutionally sound."
Like Obama--the constitutional law lecturer who mangled American legal history in his assault on the Court--Pelosi confuses judicial review and judicial activism. Judicial review is the power of the courts to say what the law is, by referring to the Constitution; judicial activism is the liberty taken by judges to declare what the law ought to be, on the basis of their personal preferences.
Pelosi claims, erroneously, that "Republicans have had a long-standing opposition to judicial review--until now." She backs up her claim with fraudulent evidence, such as quotes from Republicans about judicial activism that she falsely portrays as commentary on judicial review. She brings up examples of Republicans in Congress trying to limit courts' jurisdiction--yet that is precisely what Congress is empowered to do under the Constitution.
In fact, it is Democrats that have embraced judicial review--only to denounce it when it applies to laws they do not like. For example, Democrats believe (and many future Democrat politicians are taught in law school) that the judicial review through which the courts struck down key parts of President Franklin Delano Roosevelt's New Deal legislation was a usurpation of power reflecting outdated ideas about the free market.
In the end, Pelosi's attempt to torch Republican straw men is of no significance--except that it is a sign of how worried Democrats are, several weeks later, about the enduring political consequences of Obama's remarks. Even many of Obama's media supporters thought he had gone too far. His attack on the courts--truly unprecedented in the decades since FDR--was a stunning reminder of how radical he really is.