Borrowing a line from conservative critics of the judiciary, President Obama declared that the Supreme Court would be engaging in "judicial activism" if it threw out the 2010 healthcare reform law. Responding to a question at a news conference Monday, Obama said it would be "an unprecedented, extraordinary step" if the court overturned "a law that was passed by a strong majority of a democratically elected Congress." He added that such a move would be a good example of the lack of judicial restraint that conservative commentators have bemoaned for years.
There are several things wrong with the president's remark. For one thing, it's simply not true that it would be "unprecedented" for the court to overturn such a law. Since Marbury vs. Madison in 1803, the court has seen "judicial review" of laws as part of its responsibility, and over the years it has ruled many unconstitutional. That's entirely appropriate.
Furthermore, the implication of the remark was that the number of votes in favor of a bill was somehow relevant to its constitutionality. It's not. Otherwise, whichever party or point of view is in the majority would be free to tyrannize the minority.
That doesn't mean that the court can do as it pleases. For much of the past century, it has deferred to Congress' judgment about how to regulate commerce. On Tuesday, Obama noted those precedents and said that "the burden is on those who would overturn a law like this." And that's correct: The justices start every review from the presumption that the law in question is constitutional.