Judicial Restraint and Obama's Next Supreme Court Pick

If Sonia Sotomayor's Supreme Court nomination battle was about the virtues and vices of judicial empathy, will this summer's fight to replace Justice John Paul Stevens center on the concept of judicial restraint? It's starting to look that way. Last week aboard Air Force One, President Barack Obama told reporters that the Supreme Court's conservative majority were guilty of judicial activism, of substituting their views for that of the elected branches. According to Obama, both Congress and the state legislatures should get "some deference as long as core constitutional values are observed."

In today's Washington Post, Sen. Jeff Sessions (R-Ala.), the ranking Republican on the Senate Judiciary Committee, hurled the activism charge right back at Obama:

People are increasingly worried that Washington is exceeding the limits set by the Constitution, asserting too large a role in American life.

So when President Obama announces his next Supreme Court nominee, the American people will want to know whether he is choosing someone who is committed to the text of the Constitution and the vision of the Founding Fathers, or whether his nominee is an activist who will shed a judge's neutral, constitutional role to push a progressive policy agenda.

Comments

[President Fist of Etiquette]

I do solemnly swear that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the core constitutional values of the United States.

[Rep. Almanian Wilson]

YOU LIE!

[Speaker Death Panelist]

GASP!

[Hank Johnson]

It's ok, the constitution says it's ok in the pre-amble!

[B. Obama]

According to Obama, both Congress and the state legislatures should get "some deference as long as core constitutional values are observed

Those pesky non-core constitutional values, though -- free speech for conservatives, gun rights, enumerated powers, the right to be in public without approved papers -- those have gotta go.

[BeavisAndButthead]

Justice Stevens was right in line with this philosophy. Must be a Harvard Law thing. The idea is that it is not the letter of the law that must be applied by the court, but the more general "core values" of the constitution that must be applied, giving great deference to elected officials in the process.

What it really works out to be when put in practice is "there are no constitutional constraints on government actions we agree with, and the constitution forbids actions we personally oppose."

This is exactly the opposite of the intention of the founders of the United States. What is most infuriating is that they are actually quite successful at promulgating their ideas and putting them into force.

[Gilbert Martin]

"President Barack Obama told reporters that the Supreme Court's conservative majority were guilty of judicial activism, of substituting their views for that of the elected branches. According to Obama, both Congress and the state legislatures should get "some deference as long as core constitutional values are observed."

There he goes again with that liberal bullshit defintion of "judicial activism".

Judicial activism has nothing to do with whether the court overturns or upholds some law the legislature has passed.

It has to do with whether the court is appropriately applying the Constitution as it is written to the case or not.

[Dan T.]

No, "judicial activism" is when the Supreme Court makes a decision that you personally disagree with.

[LibertyBill]

Pretty much, even Judge Napolitano covers this in his Constitutional Crisis book. Remember how many cons went ape shit when some federal judges rulled against the Patriot Act? Granted it was meaningless since the PA is still on the book.

[John Thacker]

That's certainly the liberal definition, yes.

[Tulpa]

No, judicial activism is when the court overrules the decisions of the other branches with either no constitutional justification or an extremely convoluted interpretation of the Constitution.

Heller and Citizens United overturned laws that contradicted the plain text of the Bill of Rights, whereas Brown and Roe did not. That's why the latter two are judicial activism while the former two are not.

[PapayaSF]

What Tulpa said.

The other annoying aspect to liberal charges of "judicial activism" is when they apply it to cases where judicial activism is overturned. It's as if you are against rearranging the furniture in your room, somebody does it anyway, you put it back, and then you're accused of hypocrisy because you said you were against rearranging furniture but you just did it, nyah-nyah!

[West Texas Boy]

You pretty much just nailed Obama's definition. Well played.

[Mo]

So why isn't it activism when the court upholds laws that contradict the plain text of the constitution? My guess is Sessions isn't crying over Raich or Morse and would flip his wig if DOMA was found unconstitutional.

[Colin]

Politico is reporting the pick will be Kagan.

http://www.politico.com/playbook/

[mr simple]

According to Obama, both Congress and the state legislatures should get "some deference as long as core constitutional values are observed."

So the Supreme Court should just be a tool our masters use to legitamize their expanding control over us?

[Barry O]

Let me be clear - now you're catching on!

[Ghost of FDR]

Indeed!

[West Texas Boy]

I wonder where this list of "core constitutional values" is published wherein we can know for sure what those values are. Last time I checked, that's what THE ACTUAL FUCKING TEXT OF THE CONSTITUTION ITSELF was suppsoed to be used for.

These goddamn puppet masters make me so sick. They do one thing, then fudge words to make it sound like they're doing something else. Fuck you, Barry.

[The Gobbler]

I think Hit & Run should have an Obama Clock. It would continuously count down the days until the 2013 presidential innaguration. I would find it most comforting because I could say to myself, thank god! only 612 more days of this shit.

[Almanian]

Second

[Dan T.]

Sorry, but there is no chance in hades that Obama is not re-elected in 2012.

[prolefeed]

Sign at entrance to Reasonland:

"Don't feed the trolls"

That is all.

[Dan T.]

Translation: Free Minds, as long as you agree with us.

[Aresen]

2013? You are more optimistic than I am.

I think that His Obamaness will win in 2012, unless the economy does a Greece before then.

Also, given the possibility that Team Red will have a Romney/Huckabee ticket, ousting BO might not be such a good thing.

[LibertyBill]

So instead of war and statism from Obama we get war, statism and religious bullshit from team red??? Oh joy!

[West Texas Boy]

We've debated this before, but he needed to fool a lot of reasonable people in 2008. The stupid people and the 99% of (non-racist, of course) blacks will still be there for him, but I doubt he'll be able to pull the wool over the indepdents' eyes a second time.

But we will see.

[mitch]

This Obama quote wouldn't bother me so much if I believed that Obama, McCain, Feingold, et al, thought free speech was a "core constitutional value."

[Aresen]

Keep that up, mitch, and you may be charged under Article 58, Section 10.

[His Eminency]

Sessions giving progressives (and Kennedy) the much-deserved finger:

"...in Kelo v. New London, the traditional wing voted to protect private property rights and the progressive wing prevailed in allowing the state to seize someone's home and give it to a commercial developer."

[Slim Charles]

That's the best thing sessions ever said in his life.

[Slim Charles]

D'oh! I meant "Sessions," of course.

[Dan T.]

It just shows that Sessions is either a liar or has very little as to what Kelo was about.

[cmace]

So what was it about?

[Dan T.]

The Kelo decision did not establish any new law as its detractors claim...it merely defered to precedents that were already in the books as to what can be considered "public use" in eminent domain cases.

The reaction to it was hysterical and not helped by the media's inaccurate portrayal of the case, which seemed to imply that the government can seize property and "give" it to somebody else without cause or compelling reason.

[John Thacker]

the government can seize property and "give" it to somebody else without cause or compelling reason.

Ah, that word "compelling" is key. I found their reason utterly uncompelling. The decision defined "will bring in more tax revenue" as a compelling reason, which I disagree with.

[BeavisAndButthead]

Agreed. The reasoning in this case was frightening. The very purpose of the constitution was to establish and limit the government's powers in order to protect the people. It even explicitly mentions the right to keep your stuff.

Overturning this right used to require a seriously compelling reason that would be for the public good and could not be accomplished otherwise, like putting in a road, or airport or rail line.

The new standard of "local officials know best" is no standard at all. Under this rationale, they really can take any property for any reason they please.

[Dan T.]

Yes, what the case was about was whether or not the town had a compelling enough reason to seize the property and the courts decided that they did.

What constitutes a "compelling" reason is subjective and the Courts are the ones who are charged with making that judgment call.

Fine to say you disagree with them but to say that this ruling means that local governments can go around taking property from one person and giving it to another is false.

[Tulpa]

Apparently the standard for "cause or compelling reason" is that the government really wants to do it.

What compelling reason did New London have to condemn the Kelo property? What compelling reason does NYS have for seizing the Atlantic Yards properties?

[d.eris]

"the American people will want to know whether he is choosing someone who is committed to the text of the Constitution and the vision of the Founding Fathers"

Why would the American people suddenly have such concerns in this matter? Clearly it isn't much of a concern to them at all, judging from the consistency with which they vote for Democrats and Republicans.

[R C Dean]

Kelo is a bad decision because the Constitution says that the government can only take private property for "public use."

The property taken in Kelo was not for "public use." Ergo, the Kelo taking was unconstitutional, and SCOTUS got it wrong, wrong, wrong.

Its really no more complicated than that.

[Beowulf]

This is probably a radical thought but if the Framers meant to say "nor shall private property be taken for public benefit" wouldn't they have written that instead of "nor shall private property be taken for public use" and not relied on having the SCOTUS, 220+ years later, divine the true meaning?

[West Texas Boy]

Nailed it.

But, see, since the Connecticut legislature had already decided that "public use" means "public benefit", it would have been judicial activism to overturn the law. We should all be thanking Justice Stevens for being such a stalwart defender of the judicial branch's original purpose.

Suckers.

[blueGrass]

the American people will want to know whether he is choosing someone who is committed to the text of the Constitution and the vision of the Founding Fathers

I don't want to know anything. I already know.