Judging the Judges

The U.S. Supreme Court is completing its work on several high profile cases this term, including a challenge to the constitutionality of the Affordable Health Care Act.  Recently, the President and various congressional leaders have urged the "conservative" members of the Court to defer to the elected branches and uphold the law on the basis of Congress' power to regulate commerce, saying to do otherwise would be an act of judicial activism.

In the 1803 case of Marbury v. Madison, the Court established the authority of the judiciary to review the constitutionality of executive and legislative acts.  In evaluating a law passed by Congress, judges should begin with the presumption that a law is constitutional.  However, the presumption of constitutionality is just that –a presumption. This is only the beginning of the judicial inquiry, not the end.