The Liberal Attack on the Court

To pillory or punish judges for doing their job undermines the legitimacy not just of the court but of our entire constitutional system.

Back in the 1960s, conservatives angry at the Supreme Court's rulings under its liberal chief justice put up billboards with the message: "Impeach Earl Warren." Today, you can order T-shirts and buttons with an updated demand: "Impeach John Roberts."

In fighting a war, the danger is always that you will come to resemble your enemy, adopting his basest tactics purely for the sake of victory. That happens in politics as well, as President Barack Obama and his allies are now demonstrating.

Obama has done his best to undermine respect for the Supreme Court on more than one occasion. After it ruled that corporations and unions have the right to spend money communicating about candidates during election campaigns, he denounced the court for choosing to "open the floodgates for special interests."

He made that claim in his State of the Union address, in the presence of several justices. It was hard to recall a moment in the last half-century when a president had so brazenly challenged the court.

But it was just the first. After the court heard oral arguments on the constitutionality of his health-insurance overhaul, Obama took the opportunity to fire a warning shot: "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."

As a former law school lecturer, he is not unaware that overturning laws passed by democratically elected legislators is what the court does all the time -- and what it is charged with doing whenever those statutes punch through the limits established by the Constitution.

Later, the White House said he only meant that overturning a law on "a matter of national economic importance" would be unprecedented. Of course, a federal individual mandate to buy health insurance is also unprecedented. So either way, something's going to be done that hasn't been done before.

In any event, Obama's criticism could well have come from a hard-line conservative with a crabbed view of the role of the judiciary. It brings to mind no one so much as the Supreme Court nominee Robert Bork.

He was chosen by President Ronald Reagan but rejected, partly because he was given to decrying the invalidation of laws by "an anti-democratic, indeed a despotic, judiciary" and approvingly quoting G.K. Chesterton: "The liberty to make laws is what constitutes a free people." Maybe Obama would like to steal those lines.

Conservatives, of course, exhibit a strange new respect for judicial review, which they have often reviled for letting unelected elitists ride roughshod over prevailing public opinion. But that's no excuse for Obama to suggest that the court would be acting illegitimately in striking down his health care plan.

Some of his supporters think such a decision would demand stern remedies. Writing in The Daily Beast, University of Houston law professor David Dow urged the use of impeachment if the justices invalidate Obamacare.

This brings back memories of 1970, when House Republican leader Gerald Ford mounted an attempt to impeach liberal Justice William O. Douglas, whom he accused of, among other sins, assisting the "militant hippie-yippie movement."

The effort to remove a justice over allegedly wrong views was an embarrassing failure then and would be again. Congress is not about to use the nuclear option merely because the party in power disagrees with the Supreme Court.

The court has an obligation to use its best judgment to assess the meaning of each provision of the Constitution, a task that leaves plenty of room for disagreement. To pillory or punish judges for doing their job undermines the legitimacy not just of the court but of our entire constitutional system.

There is another way to respond when the court goes against your side: Win elections, appoint your justices and, over time, hope to win the intellectual battle over how to interpret the Constitution and the laws.

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  • Night Elf Mohawk||

    But does he know where his towel is?

  • Pound. Head. On. Desk.||

    Any man who can hitch the length and breadth of the galaxy, rough it, slum it, struggle against terrible odds, win through, and still knows where his towel is is clearly a man to be reckoned with.

  • Suki||

    adopting his basest tactics
    I think you meant bestist there.

  • ||

    I think you meant bestist there.

    I think you meant beastist there.

  • General Butt Naked||

    I think you meant beastist there.

    I think you bassist, pal.

  • General Butt Naked||

    fucked that up

    *bows*

  • ||

    Needs more jazz hands.

  • General Butt Naked||

    I'm in a state of perpetual jazz hands, it's how I cope.

  • Suki||

  • jacob the barbarian||

    I think a jazz saxophone riff when the president enters the room should become the norm.

  • R C Dean||

    I'll never see Obama enter a room without hearing "Yakety Sax" in my head.

    Thanks. Really.

  • jacob the barbarian||

    Benny Hill, were are you when we need you!

  • Ben the Duck||

    "You're a towel!"

  • NAR||

    That first paragraph is ridiculous. In the 60s putting the money together and ordering billboards was a big deal. These days anyone with a cheap computer and Internet access can sell t-shirts on a website.

    It's just more false equivalency, seems to add to the discussion but just obfuscates the truth.

  • Bill||

    See those trees? They're part of the FOREST.

  • Fluffy||

    What difference does it make how much effort it took to put up billboards vs. print a t-shirt?

    The only reason either of those things is important is because they illuminate a state of mind. A state of mind which required neither act to exist.

    The important thing here is that people think it, not that they buy some crap somewhere.

  • Night Elf Mohawk||

    What difference does it make how much effort it took to put up billboards vs. print a t-shirt?

    Because it could easily reflect the degree of feeling involved?

    It doesn't seem necessarily valid to equate efforts that can be accomplished with a few mouse clicks and a little typing to those which require more effort and money and actually getting up off the couch. If people had to buy billboards instead of post on Facebook, the degree of back-and-forth would probably be lower.

  • coma44||

    To pillory or punish judges for doing their job undermines the legitimacy not just of the court but of our entire constitutional system.

    Is that not exactly what every progressive would love....the entire constitution out of the way?

  • sarcasmic||

    Not the entire thing.
    There are about seven words they would keep:

    General welfare... regulate commerce... necessary and proper.

    But yeah, as far as liberals are concerned the rest can go in the bin.

  • ||

    I think many liberals would like something patterened after the UN's Universal Declaration of Human Rights, which lays out basic rights that every individual should enjoy under the laws of whatever country they're from. Most of it sounds pretty reasonable: due process, freedom of speech and religion, right to travel freely within one's country, etc. There's even the typical lefty stuff about the right to join a union, equal pay, reasonable working hours, etc. But toward the end, in Article 29, it says:

    "These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations."

    Which pretty much means that any of these rights can be revoked, on a whim, by whatever member state a citizen lives in. Which pretty much means that they're not rights at all. I dare say many on the American left would love to have this sort of "escape clause" written into our own Constitution.

  • sarcasmic||

    "Once the government becomes the supplier of people's needs, there is no limit to the needs that will be claimed as a basic right."
    —Lawrence Auster
  • R C Dean||

    I dare say many on the American left would love to have this sort of "escape clause" written into our own Constitution.

    Between "national security", "drug war", and "health care", we're nearly there.

  • Torontonian||

    Take a look at the very first paragraph of Canada's Charter of Rights and Freedoms:

    "1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."

  • R C Dean||

    I love the way they throw "democratic" in there. I believe that means anything passed by an elected government would be, by definition, a "reasonable" limit on rights and freedoms.

  • sarcasmic||

    Majority rules.

  • jacob the barbarian||

    The tyranny of the intellectual proletariat.

  • Torontonian||

    Then, if you have the time, take a look at Section 33. of Canada's Charter of Rights and Freedoms: http://laws-lois.justice.gc.ca.....l#l_I:s_32

    Known as the "Notwithstanding Clause", it allows the Federal and Provincial Governments to legislate in explicit contravention of Charter rights, so long as they reaffirm every 5 years that the law is unconstitutional.

    I prefer to call it the "Eff' the Constitution, We'll Pass Whatever Laws We Want" clause.

  • Sevo||

    Woo, that's some catch...

  • ||

    That was put in to pacify the People's Democratic Republic of Quebec. Which I believe they even invoked on language.

    Poof.

  • Lord Humungus||

    a "living constitution". I asked my liberal sister-in-law what that exactly meant, and the description wasn't exactly memorable. My reply was - if there are no base rules, then why have a constitution?

  • sarcasmic||

    if there are no base rules, then why have a constitution?

    To them the purpose of the constitution to describe how government functions.
    The legislative writes laws, the executive rubber stamps them, and the judiciary defends them against those with the temerity to judge them by the constitution.

    As far as limiting the scope of government... what's the point of having government if it is limited in what it can do?

  • scareduck||

    The "living constitution" malarkey is a call, whether the speaker knows it or not, for mob rule.

  • sarcasmic||

    When you're part of the mob, mob rule is quite appealing.

  • R C Dean||

    As "revolutionaries" have learned to their sorrow throughout history:

    Me today, you tomorrow.

  • Jerryskids||

    Play with fire, you burn your fingers and lose your hold of the flame. Break the circle and stop the movement, the wheel is thrown to the ground.
    Just remember it might start rolling and take you right back around.

  • Concerned Citizen||

    Wish I could remember who said it, but "the next time someone tells you it's a living Constitution, challenge them to a game of living poker."

  • Brutus||

    Exactly. The whole point of writing it down is to affix a meaning to it. Unmoor it from that meaning, and it's a useless piece of paper.

  • Cyto||

    Oh no, I think they find it very useful...

  • sarcasmic||

    "The liberty to make laws is what constitutes a free people."

    Laws either force restrictions on activity or mandate activity.

    So by that quote freedom means asking permission and taking orders.

    Isn't that the opposite of freedom?

  • Heroic Mulatto||

    Isn't that the opposite of freedom?

    Yup. I'm not a G.K. Chesterton fan, as you could tell.

  • sarcasmic||

    I suppose if you are the one who demands permission and gives orders you might consider that to be freedom.

  • Tim||

    Earnest Freethinkers need not worry themselves so much about the persecutions of the past. Before the Liberal idea is dead or triumphant we shall see wars and persecutions the like of which the world has never seen.
    Daily News (18 February 1905)

  • Zeb||

    I suppose that depends on whether you are an anarchist.
    The freedom to make laws is also the freedom not to make laws.

  • R C Dean||

    A people is free to the extent that it is not subject to coercive restrictions.

    The purely majoritarian formula "The liberty to make laws is what constitutes a free people" place no restrictions on the coercive restrictions which may be imposed.

    History teaches us that majoritarianism is used to apply more and more coercive restrictions.

    Theoretically, one supposes, a purely majoritarian government could be a minarchy.

    Its just never happened.

  • Fluffy||

    Strictly speaking, Bork should not have complained about being Borked.

    Given his legislative, majoritarian triumphalism, he should have regarded his ass-fucking as the expression of the liberty of a free people.

  • Randian||

    Ha. +1

  • ||

    "We are increasingly governed not by law or elected representatives but by an unelected, unrepresentative, unaccountable committee of lawyers applying no will but their own."

    Robert H. Bork

    I think he had every right to complain; whether or not the complaint had merit is a different argument entirely. Bork made a career out of pointing out how the Warren Court had a propensity for substituting the latest social science fad for jurisprudence in O.W. Holmesian fashion.

    Though, despite claims Bork is some right wing extremist, I am convinced, based on his writings, in particular WRT to antitrust law, that Bork would indeed uphold ObamneyCare. It should also be noted that Bork is a legal advisor to the Shit Flopney campaign. Had Bork been confirmed, I hold the view he would have ended up a carbon copy of Justice Anthony Kennedy.

    If Kagan had been denied confirmation (and she should have, she was less qualified than Harriet Myers was), would you hold the same view as you do Bork?

  • R C Dean||

    unrepresentative, unaccountable committee of lawyers applying no will but their own

    Sounds like a fair description of Congress to me, especially given the feudal (to the point of being heritable) nature of seats that are protected by gerrymandering, ballot access laws, and campaign finance laws.

  • Jerryskids||

    Bork also said the Ninth was an inkblot, that allowing judges to determine which unenumerated rights should be enumerated was a prescription for disaster because judges would just arbitrarily decide the Constitution granted all kinds of rights. For example, Roe v. Wade decided you have a right to an abortion when - Bork argued - nowhere in the Constitution is there a right to an abortion.

    That's not where the Constitutional burden of proof lies. If you want to tell me I don't have a right to an abortion, you are going to have to show me where in the Constitution it says Congress has the right to deny me an abortion.

    The Ninth appears to be an inkblot if you believe the exact opposite of the Ninth, that the only rights you have are the ones the government gives you.

  • Concerned Citizen||

    Abortion on demand violates the 5th Amendment: No person shall...be deprived of life, liberty, or property without due process of law

  • ||

    The problem is that no legislature has had the balls to define what a person is.

  • Auric Demonocles||

    Roe vs Wade wasn't about Congress telling you that you can't get an abortion. It was about a law in Texas.

  • Brian from Texas||

    Maybe Obama will take a cue from Newt Gingrich and start sending out US Marshals to arrest judges on charges of "judicial activism", the definition of which being to them is any ruling they disagree with.

  • Tim||

    "Join Michelle and tell Barack you're in." says the pop up to the right. Then a little red box asks; "Are you in?".

    It's a cliche and a threat!

  • db||

    Are you in? Check one!

    OMG JA!!


    nein

  • Ben the Duck||

    Then a little red box asks; "Are you in?"

    "I have a name, you know. It's 'Kathy Griffin.'"

  • JohnMoser||

    So, it's really those rascally Republican's fault, right Stevie? Jesus you're an embarrassment(certainly to Reason and possibly to the Tribune).
    "If they don't like it, they can undertake the same task in hopes of turning the court in a more agreeable direction. No, it's not easy; no, it's not quick; no, it's not a sure thing. Who ever said it ought to be?" Ummm...FDR.

  • Mike M.||

    Yep, this is Chapman's tired old schtick. Every one of Obama's gaffes, authoritarian dictates, and dismal failures is really the fault of the republicans, plus the absolutely laughable assertion that he's a moderate instead of a far leftist.

    For some reason, Reason seems to feel obligated to always have one of these Obama dick-licking mainstream media turds on staff.

  • shrike||

    Funny, I used this Warren Court example of how conservatives hated the SCOTUS and ran against them for 30 years and 'John' told me I was wrong. Of course 'John' has never been right.

  • Sevo||

    shrike|4.9.12 @ 9:45AM|#
    "Funny, I used this Warren Court example of how conservatives hated the SCOTUS and ran against them for 30 years and 'John' told me I was wrong. Of course 'John' has never been right."

    It's possible that this is true.
    But given your record of misdirection, cherry-picking, moving the goal post, etc, let's just say there's room for doubt.

  • Mr. FIFY||

    Liberal griefer is griefy.

  • Gerholdt||

    Narcissisic.

  • Ron||

    Didn't the Warren court actually make up laws which would be judicial activism where as this court may just turn down a law which is their only job, approve or dissaprove of a law not make law. And when it comes to the Republicans complaining about the courts weren't their complaints always after the ruling not while they were actively making a ruling where the Obama's comments could actually sway their opinions, which by itself is not necessarily a bad idea except when it comes with a threatening tone as Obama's comments carried.

  • shrike||

    No, wingnuts claim the court made up rights like the Right to Privacy despite the plain language of the Ninth Amendment.

    Conservatives want no Right to Privacy since it negates their love of a police state.

  • Jerryskids||

    That is why I think Roe v. Wade was one of the worst decisions ever - the Court felt it necessary to find somewhere in the penumbras and emanations of the Constitution a right to privacy. It turned the Constitution upside-down. Show me where in the Constitution it says I don't have a right to privacy. Absent that - Ninth Amendment, bitches.

  • Concerned Citizen||

    And how does this right to privacy apply to males?

  • Auric Demonocles||

    You've got the right to privately pay your child support.

  • Ron||

    I see, a right to kill as long as it's done in private is protected by the constitution under the privacy clause. Well I say Zimmerman privately killed Martin. I'm all for abortion but that was a forced twisted logic to allow abortion where as if congress had said it was legal or the people voted for abortion then the SC saying it was allowed would not have been activism.

  • Concerned Citizen||

  • trickamsterdam||

    @Steve Chapman:

    The problem is the Justices stopped acting like conservatives or libertarians and started acting like "philosopher kings" (i.e. liberals). Clownish questions about whether ObamaCare will raise the deficit which has nothing to do w/ the Constitution (why a lot of us want a BBA). Admitting openly that over half is constitutional yet saying they don't want to go through the whole thing...it's "too long" (then request more staff please sirs). And basically setting the precedent that if one important part of a bill is unconstitutional (the Mandate) then all the rest goes too.

    With the fact that Congress changes every two years that is not a good precedent. And if the ruling is 5-4 no one can say it should have been "obvious" to the Congress or President that it was unconstitutional.

    They should simply do their jobs: Take out what's unconstitutional and leave the rest. If what they leave is a mess is irrelevant. Determine what is constitutional and nothing else...anything else is judicial activism.

    PS- It's exactly why the liberal Justices voted the way they did in "Citizens United" btw. Looking at the effects of the law rather than if it was constitutional. Conservatives using liberal methods are like a man who tries to kill someone else by drinking poison himself: Confused and corrupted losers.

  • Cyto||

    Except that congress specifically removed language allowing the law to be carved up like that. There was a severability clause and the congress removed it intentionally.

    With that kind of power over a law, I suppose the court could claim the power to strike down a phrase or sentence and completely reverse the meaning of a law.

  • trickamsterdam||

    @Cyto:

    "Except that congress specifically removed language allowing the law to be carved up like that."

    True. But whether is was Dems being too clever by half or simply incompetence...why all the ridiculous questions? Why worry about the deficit?

    Just say the Mandate is unconstitutional (I think it is) and strike the whole thing down. They seemed to be specifically trying to make the case it is a bad law (I agree mostly it is). But why did they feel the need to make that case?

    Because they want to be "philosopher kings". Not "judicial machines" that merely take out what's unconstitutional w/out emotion...what they should be (IMO). Because if they use emotion they have too much power...unelected and sitting for life.

    They aren't bound by that severability clause (or lack of) but if they want to use that as an excuse then use it. But why all the questions then on the details of the law?

    It can only seem to an observer because they know it's a bad law and want to take it down for that reason. That's the wrong reason to take it down!

    PS - Striking down the Mandate but leaving the rest is the one thing that makes me think Romney could beat Obama (otherwise I think he's a dead duck). Romney would then have a legitimate reason for repeal because the law would have been clearly changed and different from RomneyCare...Obama would have to find a way to defend it sans mandate and probably couldn't. So their judicial activism could cost us the White House as well....

  • ||

    By changing the law (taking out a piece) they would be essentially writing a new law. Isn't writing new law judicial activism?

    As Cyto mentions, the legislature took out a law that says "yeah ok, this law can be divided up into little pieces". Wouldn't going against those explicit wishes be judicial activism?

  • golds||

    Writing new law is Judicial Activism. Ruling a law, or part of a law, unconstitutional is certainly not.

  • mad libertarian guy||

    That's what conservatives set about doing a generation ago, and the result is a court dominated by GOP-appointed justices who take a different view of constitutional language.

    I'm not sure I'd call a 5-4 majority on the court a "court dominated by GOP-appointed justices who take a different view of constitutional language."

  • ||

    The court has an obligation to use its best judgment to assess the meaning of each provision of the Constitution, a task that leaves plenty of room for disagreement. To pillory or punish judges for doing their job undermines the legitimacy not just of the court but of our entire constitutional system.

    Well, no. If the judges are not doing their job -- striking down unconstitutional laws -- then the other two branches have the duty to toss the offending justice off the court.

    Each branch is supposed to uphold the Constitution, and push back against any attempt by the other two branches to breach the limits of said document.

    Now, Obama would love to toss off the court those justices who oppose his unconstitutional law, but the appropriate remedy for that is impeachment hearings.

  • Registration At Last!||

    I don't see where Obama said, or used a synonym for, or otherwise insinuated, impeachment or anything like it.

    He stated his view of a matter on which he has a direct legal interest as president. The Justices can take it for what it's worth, and make their own independent call.

    Where's the foul here? The conservos and libertards are flopping like an especially sneaky mid-fielder on a third-world soccer team.

  • golds||

    Does every institution/person/group that opposes Obama have to be discredited?

    Do you really think that challenging the integrity and legitimacy of the Supreme Court is helpful in any way?

  • yu100w||

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