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.