Barack Obama wandered away from the teleprompters last Wednesday night on Air Force One, and engaged in “an impromptu conversation with reporters” about liberal activism on the Supreme Court.
“It used to be that the notion of an activist judge was somebody who ignored the will of Congress, ignored democratic processes, and tried to impose judicial solutions on problems instead of letting the process work itself through politically,” Mr. Obama said.
“And in the ’60s and ’70s, the feeling was — is that liberals were guilty of that kind of approach. What you’re now seeing, I think, is a conservative jurisprudence that oftentimes makes the same error.”
Mr. Obama’s comments, which came as he prepares to make a Supreme Court nomination, amounted to the most sympathetic statement by a sitting Democratic president about the conservative view that the Warren and Burger courts — which expanded criminal defendant rights, required busing to desegregate schools and declared a right to abortion — were dominated by “liberal judicial activists” whose rulings were dubious.
Glenn Greenwald provided a little context around Obama’s impromptu right-wing rant.
Given that the defining rulings of those decades have long formed the bedrock of the progressive understanding of the Constitution and the judiciary, that the dominant Justices of that era (Brennan, Marshall, Douglas, Black) are the iconic liberal judges of the 20th century, and that those decades produced the most vital safeguards for core Constitutional guarantees and critical limits on executive power, Obama — as I said yesterday — should at least specify which decisions he finds “erroneous” and illegitimate. But the imperial decree has been issued and that’s apparently all you need to know:
The White House declined to identify rulings that Mr. Obama believes relied on judicial activism.
The absolute dumbest political platitude in the vast canon of right-wing idiocies has long been the premise that courts act improperly — are engaged in “judicial activism” — whenever they declare a democratically enacted law invalid on the ground that it is unconstitutional. That’s one of the central functions of the courts, a linchpin of how our Constitutional Republic operates. We’re not a pure democracy precisely because there are limits on what democratic majorities are permitted to do, and those limits are set forth in the Constitution, which courts have the responsibility to interpret and apply. When judges strike down laws because they violate Constitutional guarantees, that’s not a subversion of our political system; it’s a vindication, a crucial safeguarding of it.
It’s possible that Barack Obama doesn’t really oppose integration and abortion rights, and simply believes that the courts should have waited for legislatures to write Brown v. Board of Education and Roe v. Wade into law, instead of engaging in “judicial activism.”
But the framers of the US Constitution were notoriously unwilling to allow basic human rights to be redefined by every succeeding gang of newly-elected politicos, and they consequently embedded the Bill of Rights and the Fourteenth Amendment directly into the Constitution.
So maybe what Mr. Obama means by “letting the process work itself through politically” is that proponents of abortion rights and integrated schools should have summoned a Constitutional Convention, instead of relying on “judicial activism” or transitory Congressional legislation which every succeeding Congress could reverse or re-instate.
But when the over-active Warren Court wrote its unanimous 9-0 opinion in Brown v. Board of Education, for example, no less than 17 states still enforced de jure segregation of schools.
So in order to attain the necessary two-thirds majority of approval by state legislatures required for a Constitutional Convention, black Americans would have had to wait for 34 integrationist legislatures to over-rule the 17 segregationist states…
And that means they would have had to wait for the 51st state to be admitted to the Union, and that means…
They would still be waiting.
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Of course Obama isn’t really trying to overturn Brown v. Board of Education, and his impromptu attack on “judicial activism” is just an unusually clumsy manifestation of unscripted Obama.
The real problem is a real possibility that the Roberts Supreme Court might overturn the “mandates” of healthcare reform as an illegitimate and unprecendented extension of the Commerce Clause of the Constitution.
It is true that the Supreme Court has interpreted the Commerce Clause broadly enough to reach wholly intrastate economic “activity” that substantially affects interstate commerce. But the Court has never upheld a requirement that individuals who are doing nothing must engage in economic activity by entering into a contractual relationship with a private company. Such a claim of power is literally unprecedented.
On March 21, the same day the House approved the Senate version of the legislation, the staff of the Joint Committee on Taxation released a 157-page “technical explanation” of the bill. The word “commerce” appeared nowhere. Instead, the personal mandate is dubbed an “Excise Tax on Individuals Without Essential Health Benefits Coverage.” But while the enacted bill does impose excise taxes on “high cost,” employer-sponsored insurance plans and “indoor tanning services,” the statute never describes the regulatory “penalty” it imposes for violating the mandate as an “excise tax.” It is expressly called a “penalty.”
This shift won’t work. The Supreme Court will not allow staffers and lawyers to change the statutory cards that Congress already dealt when it adopted the Senate language.
Yes, the smart money is always on the Court upholding an act of Congress. But given the hand Congress is now holding, I would not bet the farm.
The bottom line is that if the Democrats had enforced healthcare mandates with a tax, they could have avoided the relatively serious Constitutional challenge which attaches to an unprecendented penalty, but in that case they would have had to abandon their role as tax-cutters and in general “Republicans lite,” so they rejected the unpopular category of taxes in favor of the very possibly unconstitutional category of penalties.
Now the Joint Committee on Taxation is trying to run away from that mistake, and they can run, but they can’t hide.