Obama's criticisms of the Warren and Burger courts
By Glenn Greenwald
April 30, 2010
Glenn Greenwald was previously a constitutional law and civil rights litigator in New York. He is the author of the New York Times Bestselling book "How Would a Patriot Act?," a critique of the Bush administration's use of executive power, released in May 2006. His second book, "A Tragic Legacy", examines the Bush legacy.
Yesterday I wrote about what seemed to be President Obama's fairly stunning disparagement of the Warren and Burger Courts (expressed on the eve of naming Justice Stevens' replacement), as he echoed the classic, decades-old, right-wing claim that those courts were guilty of the "error" of "judicial activism." As I noted in an update, numerous people, in comments and via email, objected that I had misinterpreted Obama's remarks, that he was merely noting the hypocrisy of the Right but not himself criticizing those courts. As it turns out, The New York Times' Charlie Savage and Sheryl Gay Stolberg understood his remarks exactly as I did, as did the experts on both sides of the spectrum they interviewed, and the White House itself seemed to confirm that this is exactly what Obama intended to convey:
Now, there's nothing sacrosanct about those courts, and there's nothing per se wrong with criticizing them. But 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.
But now, here is Obama giving credence to that idiocy with his sweeping, unspecified condemnation of the Warren and Burger Courts as "judicial activists." If, as Obama argues, some (or many) of the decisions of that era are "errors" of activist overreaching, wouldn't the current Court be justified in reversing them? And won't Republican Senators be justified in demanding that Obama refrain from nominating to the Court anyone whose records seems compatible with the defining judicial approach of those courts (since, after all, even Obama acknowledges they were in "error")? Why is Barack Obama walking around echoing the right-wing/Limbaughian view that the Supreme Court's decisions of the 1960s and 1970s were illegitimate, anti-democratic power grabs?
Publicly discrediting the core judicial function may serve Obama's short-term political goals by deterring the Roberts Court from striking down laws enacted by the current Congress or actions he takes as President. It may win him a day's worth of plaudits from right-wing legal ideologues. But it also further entrenches the right-wing myth that judges act illegitimately when they strike down democratically elected statutes or "interfere" in executive actions. That won't apply only when it comes time to examine Obama's domestic legislation, but also when it comes time to adjudicate the next Military Commissions Act, or the next oppressive anti-gay referenda, or future efforts to restrict Internet content, or twisted (but democratically-enacted) abortion laws, or government programs to spy on Americans without warrants, or the latest police state expansion of the type just enacted in Arizona, or whatever else the next GOP majority is able to implement. The basis for constitutionally challenging such acts is found in the jurisprudence that Obama just demeaned.
Read the full article at:
http://www.salon.com/news/opinion/glenn_greenwald/2010/04/30/obama/index.html--------------------------------------------------------
Obama And The Liberal Courts
The Plum Line
Greg Sargent's blog
April 30, 2010
The latest: Comments Obama made earlier this week that seemed critical of the 1960s and 1970s liberal courts that are now coming under scrutiny. The Times reports them this way:
“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 often times makes the same error.”
He added, “The concept of judicial restraint cuts both ways.”
Is this what Obama meant to say? Well, the White House isn’t walking the comments back. Meanwhile, the White House is declining to specify which rulings Obama was referring to.
Putting aside the specifics of this argument — which Glenn Greenwald deals with at length today — what’s mystifying about this kind of talk is that it doesn’t serve any clear purpose, other than needlessly antagonizing the left. When Obama announced his drilling plan, he said it was time to “move beyond the tired debates between right and left,” apparently drawing an equivalence between both side’s arguments about, of all things, energy issues.
Those sympathetic to Obama will argue that this sort of thing amounts to a shrewd act of positioning — it disarms the right’s efforts to paint him as a liberal ideologue. Perhaps, but this kind of talk doesn’t do a thing to stop the attacks from the right. Will denigrating the liberal camp persuade the “middle” that he’s reasonable and unthreatening, and therefore more inclined to agree with him? Doubtful. Seems more likely that middle of the road voters care less about positioning than about the actual substance of Obama’s arguments.
http://theplumline.whorunsgov.com/climate-change/obama-and-the-liberal-courts/
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