Not enough ‘penumbra raiders’ on court for Obama

Earlier this week our 44th president told Americans how he felt Supreme Court justices should rule on the health care reform law he signed. President Obama believes they should uphold it.

And he said much more than that. He dared to weigh in on the subject of judicial activism. This is what he had to say:

“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.”

So saith the man who thinks the 1973 Roe v. Wade decision isn’t just a Supreme Court ruling, but God’s 11th Commandment. Everything Obama said about judicial activism applies to the Roe decision.

The justices were, as now, unelected.

They overturned abortion laws that democratically elected state legislatures had passed.

Those laws were “duly constituted.”

Those laws were passed because state legislators believed — rightly — that the state had a compelling interest in protecting life, including that of the unborn.

And what justification did those unelected justices use to strike down anti-abortion laws in every state of the union? A right to privacy.

That’s not even an enumerated right in the Constitution. The Ninth Amendment suggests that it probably exists, but nowhere in that amendment does it suggests that nine Supreme Court justices get to bestow it on American citizens at the justices’ whim.

Instead of invoking the Ninth Amendment, the justices decided to root around in what one of them called the “penumbra” of the Constitution. There, they found a right to privacy.

They yanked it out, applied it to Jane Roe, and struck down every statute that restricted abortion in every state.

Now, that was real judicial activism, perhaps the worst we’ve ever seen. But our feminist in chief has no problem with the judicial activism in Roe. He makes it a point to observe Jan. 22, Roe’s anniversary, every year.

A victory for women’s rights and the “reproductive rights” of women throughout the land, Obama and others have called it.

Also a victory for every horny man who wanted to have sex without consequences, the more sober and observant among us called it. Whichever was the case, the judicial activism employed in Roe is the most egregious this nation has ever seen.

Now, in a curious and almost downright amusing about-face, our feminist in chief has decided he no longer has use for judicial activism. Rather than whine about judicial activism, Mr. Obama might want to heed the words of Utah Sen. Orrin Hatch, who put this judicial activism business in perspective.

Hatch said that if Obama believes “every law you like is constitutional and every Supreme Court decision you don’t is ‘activist,’ ” then our president is living in a “fantasy” world.

“Judicial activism or restraint,” Hatch is quoted as saying, “is not measured by which side wins but by whether the Court correctly applied the law.”

In the Roe case, the court didn’t. In the Obamacare case, justices correctly asked where either the president or the Congress gets the power to compel private citizens to buy something they may or may not want to buy, in the name of regulating interstate commerce.

It may turn out that there just aren’t enough “penumbra raiders” on this Supreme Court for our president.

Examiner Columnist Gregory Kane is a Pulitzer-nominated news and opinion journalist who has covered people and politics from Baltimore to the Sudan.