Neal Katyal, the former acting solicitor general who defended Obamacare unsuccessfully in the 11th Circuit Court of Appeals, explained in an interview published over the weekend why he believes the U.S. Supreme Court should leave the law intact. To do otherwise, he argued, “would be the Supreme Court saying: ‘Look, we’ve got the power to really take decisions, move them off of the table of the American people, even in a democracy.’ ” He added: “The challengers are saying that this law is unconstitutional, which means even if 95 percent of Americans want this law, they can’t have it. And that’s a really profound thing for an unelected court to say.”
Katyal’s bizarre argument puts him at odds with an entire library’s worth of Supreme Court jurisprudence — everything from Marbury v. Madison to Brown v. Board and beyond. Importantly, he fails to make a distinction so fundamental that it hardly seems worth mentioning — namely, that some laws are constitutional and others are not. This distinction, and not some curious, extraconstitutional desire for majoritarian rule, determines when judges should get involved in thwarting duly enacted legislation.
