Supreme Court

Obama: Conservative Judicial Activism Bad, Liberal Judicial Activism, Well…

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On Wednesday President Barack Obama spoke to reporters aboard Air Force One about the Supreme Court and its role in American politics. As the Associated Press reported:

Obama spoke of judges who ignore the will of Congress and the democratic process, imposing judicial solutions instead of letting the political process solve problems.

"In the '60s and '70s, the feeling was, is that liberals were guilty of that kind of approach," Obama said. "What you're now seeing, I think, is a conservative jurisprudence that oftentimes makes the same error."

He said the notion of judicial restraint should apply to liberal and conservative jurists. Instead, the president said arguments over original intent and other legal theories end up giving judges a lot of power — sometimes more power than elected representatives have.

Obama said judges should presume that the laws produced by the House and Senate and state legislatures should get "some deference as long as core constitutional values are observed."

Get ready for lots more rhetoric like this in the months ahead. Obama is repeating the liberal narrative about the recent Citizens United decision, which asserts that activist conservative justices ignored the will of Congress and "legislated from the bench" by overturning duly-enacted laws and precedents. This will be a major liberal talking point during the confirmation battle to replace retiring Supreme Court Justice John Paul Stevens.

And the liberals do have one valid complaint. Many of today's most prominent legal conservatives—including Chief Justice John Roberts—have stressed judicial deference to precedent and to the elected branches as a core aspect of judging. During his confirmation hearings, Roberts even said his "judicial modesty" included respecting the abortion-legalizing Roe v. Wade, which he called "the settled law of the land." Yet it's pretty hard to square that deferential view with Roberts' concurrence in Citizens United. Conservatives are going to have to come up with something better than judicial restraint if they want to avoid these credible charges of hypocrisy.

Not that Obama and his liberal allies are any better. Take another look at Obama's last comment:

Obama said judges should presume that the laws produced by the House and Senate and state legislatures should get "some deference as long as core constitutional values are observed."

That's a big loophole. Citizens United was about the First Amendment. So while the Supreme Court may not have presumed the constitutionality of certain campaign finance laws, it did observe "core constitutional values." Doesn't that fit Obama's criteria? Perhaps what the president meant to say is that he wants judges who will defer to the liberal political agenda and strike down the conservative one. There's a term for that approach, but it's not principled jurisprudence.

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  1. Expect Obama to do a full on summer tour of cultural hot button issues. The Courts are always good to get people riled up about. I am sure he will be attacking Glen Beck and Sarah Palin. Something, anything, to give the media something to talk about and voters to vote over besides the economy and unemployment.

  2. Get ready for lots more rhetoric like this in the months ahead. Obama is repeating the liberal narrative about the recent Citizens United decision, which asserts that activist conservative justices ignored the will of Congress and “legislated from the bench” by overturning duly-enacted laws and precedents.

    Like New York Times Co. v. the United States , where the Supreme Court upheld the right of the New York Times to publish the Pentagon Papers?

    Ironically, the lawyer who represented the New York Times Co. in that case made a comment about Citizens United .

  3. From here:

    What is crucial now is for all Americans of good will to come together to work out a common understanding of the Constitution by which everyone’s legislation will be judged. No more of those ugly and embarrassing brawls between liberals and conservatives to get “their man” onto the Court. There cannot be anything more horrific than allowing the Constitution — the palladium of our national unity — to become anyone’s weapon in the culture wars.

    1. While that sounds great, you really need to propose some mechanism by which we can achieve such a goal. Otherwise it’s indistinguishable from the post-partisan hope-and-change nonsense that got Obama elected.

  4. “arguments over original intent and other legal theories end up giving judges the Constitution a lot of power ? sometimes more power than elected representatives have.”

    At least, that’s what I would like to believe.

  5. …laws produced by the House and Senate and state legislatures should get “some deference as long as core constitutional values are observed.”

    If the House and Senate ever observed core constitutional values, Obama wouldn’t get a single fucking bill passed.

  6. And this from the guy who laments that the Constitution is silent about what the Central State should do for you, and who wants Goowin Liu on the US Court of Appeals? Christ on a fucking cracker…

    1. Obama understands that you can get to a point where you have too much money. But, you can never have too much power.

    2. Christ, will you please get off me while I’m fucking?

  7. Maybe if the Congress exercised legislative restraint the courts could exercise more judicial restraint.

  8. Instead, the president said arguments over original intent and other legal theories end up giving judges a lot of power ? sometimes more power than elected representatives have.

    Isn’t that the point of checks and balances?
    You know, when one branch oversteps its bounds another puts it back into place?
    Seems that Obama wants no checks, only cooperation.
    Instead of the different branches keeping each other in line on behalf of the people, he wants the three branches to cooperate in keeping the people in line.

    He is not a leader, he is a ruler.

  9. Look, let’s make this easy. A clearly defined government, with established limits and checks and balances, is the best protection we have of our liberty, property, and lives.

    Even if you’re loving every moment of the current government, remember, if government keeps expanding, the shit is going to come back right at you, at even higher velocity.

    The courts are a very important check on the power of the executive and of the legislature. However, their only real power is the bulwark of the Constitution. If they (or we!) make it basically meaningless, their ability to stop any kind of government overreach becomes sharply curtailed.

    1. Even if you’re loving every moment of the current government, remember, if government keeps expanding, the shit is going to come back right at you, at even higher velocity.

      You say it as if there is an iota of self-awareness that would allow them to see this potential.

    2. Yup. But as JW says, these people have no self awareness or any idea that their principles could ever be used against them. Look at any thread on the idea of a “living constitution”. The liberals refuse to even consider the possibility that if you can expand people’s rights in the name of “changing circumstances” you can also take people’s rights for the same reason.

    3. Anarcho-capitalists would not agree with that minarchist formulation, ProL.

      1. They didn’t write the Constitution. If they want something even more limited, then let them write a new one, or rebel, kill us all, and start over.

  10. “core constitutional values”

    you mean like – “congress can not do any god damn thing it wants, but is limited in power”

    god damn. I dislike him more and more.

    1. This country was a radical departure from anything that had ever existed.
      It was founded on the principle that people have rights, and the government exists to protect those rights.
      Everywhere else the understanding is/was that the people have no rights until they are granted by the government.

      Obama understands this, and doesn’t like it one bit.
      That’s why health care legislation is so important.
      When health care is a right granted to you by the government, then you owe your very life to that government.

      Now everything is flipped. The government no longer protect rights, it is the source of rights.

      And anything that the government gives to you it can take away.

      Your life included.

  11. Obama said judges should presume that the laws produced by the House and Senate and state legislatures should get “some deference as long as core constitutional values are observed.”

    Awwww, isn’t that cute. He actually thinks the Constitution is something to be observed and followed.

    1. Are you serious? Is that a serious question?

    2. No, you’re just not interpreting Obamaspeak correctly — see below @ 1:14.

      1. Oh, I know our parsin’ president.

        I presumed that it was business as usual: Obama saying that “I will fully support and defend the Constitution and all of it’s duties,” all while destroying the National Archives with a BunkerBuster? bomb, torching the ashes of the Constitution with napalm and introducing an amendment that nullifies all text in the Constitution.

  12. Restraint only takes you so far. When major areas of precedence are at odds with each other, you have to pick one or the other. In that case, perhaps restraint is going with the older one (ie the constitution).
    Using the same sort of logic, you could say judicial activism is when they do anything.

  13. Obama said judges should presume that the laws produced by the House and Senate and state legislatures should get “some deference as long as core constitutional values are observed.”

    Of course, those pesky non-core constitutional values — you know, all the ones that conservatives and libertarians like — those have gotta go.

    1. I wouldn’t rush with that whole “conservatives have a clue” line. They trample all over the constitution just as badly as liberals.

      1. you mean that the world is not simply liberals and conservatives?
        i thought that if you disagree with a liberal that you agree with the entire radical right’s platform, and if you disagree with a conservative you agree with the entire liberal platform.
        that way you can trade shots at straw men while never exchanging any ideas.

        1. Gotta love the infinitesimally short memory of republinuts and demotards.

  14. I just wish that Obama would have been honest about citizen’s united. They keep pretending that that decision overturned “a century of precedent” and will allow corporations to flood campaigns with their money. The truth is that the only precedent overturned in citizen’s united was McCain-Feingold, which was always unpopular for protecting incumbent politicians. Also, why shouldn’t private property owners with billions at stake NOT be able to defend their property? Citizen’s United didn’t change the fact that corporations, or any political donor, must use a PAC as an intermediary when donating to political campaigns. Citizen’s United didn’t alter the fact that all campaign contributions are recorded for full disclosure.

    Plus, the obamanites act as if campaign adds were a less than subtle version of hypnosis. In reality, it’s just additional speech, and in this day and age especially, there are lots of different opinions coming from all directions, and more speech can’t possibly make us less free. The entire idea that campaign adds=elections won, is utter nonsense. If humanity is really so stupid, then there is no hope.

    Obama at least needs to have the balls to really debate this issue and not hide behind populist rhetoric.

  15. President Obama, the alleged constitutional scholar, believes that judges are not providing the legislatures with enough deference? Let’s take a look at how the Supreme Court and the rest of the federal judiciary treats acts of Congress:

    “Even in the absence of [a declaration of the legislative findings deemed to support and justify the action taken as a constitutional exertion of the legislative power], the existence of facts supporting the legislative judgment is to be presumed, for regulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional unless, in the light of the facts made known or generally assumed, it is of such a character as to preclude the assumption that it rests upon some rational basis within the knowledge and experience of the legislators.” United States v. Carolene Products Co., 304 U.S. 144, 152 (1938).

    “There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth.” Id. at n.4 (internal citations omitted).

    “When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.” Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 348 (1936) (citing Crowell v. Benson, 285 U.S. 22, 62 n.8 (1932)).

    The Supreme Court has, since at least the 1930s, crafted a jurisprudence that bends over backwards for Congress. Mr. Obama’s friends in the House and Senate have all the deference they could ever want, short of toppling the Court entirely. Either Mr. Obama is ignorant of this aspect of constitutional law, or he believes that he can dupe the public with his mischaraterization of Supreme Court jurisprudence, toward his own nefarious ends.

  16. “And the liberals do have one valid complaint. Many of today’s most prominent legal conservatives?including Chief Justice John Roberts?have stressed judicial deference to precedent and to the elected branches as a core aspect of judging. During his confirmation hearings, Roberts even said his “judicial modesty” included respecting the abortion-legalizing Roe v. Wade, which he called “the settled law of the land.” Yet it’s pretty hard to square that deferential view with Roberts’ concurrence in Citizens United. Conservatives are going to have to come up with something better than judicial restraint if they want to avoid these credible charges of hypocrisy.”

    How can can a conservative face credible charges of hypocrisy from the liberal side whose admitted judicial philosophy is almost entirely outcome based? Where the Constitution gets them where they want to go, the liberals will argue the Constitution, if precesent they’ll argue that, if foreign law helps they’ll throw that in. The ends justify the means for them, how can they charge anyone with hypocrisy?

    I’d like to see Root parse what the Dems on the judiciary questioned Robert’s with compared to how they questioned Sotomayor. It might be revealing of exactly where their priorties are rather than angsting about whether Robert’s lives up to their cause du jour back in ’06.

    One of the reasons Roberts was talking about deference to precedent was it was a for the judiciary committee to ask him how he would rule on the more constitutionally questionable liberal sacred cows like Roe v. Wade without outright asking that question. The question for Damon Root is: If established judicial precedent contradicts the Constitution do we really want the Constitution to be inferior law to precedent?

  17. A new book released today uncovers for the first time where and how President Obama first met Weather Underground terrorist-group founder William Ayers,and it is much earlier than previously believed.

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