I wasn't as affected as most by the events surrounding Obama's slapdown of the Supreme Court's Citizen United decision last night. To be sure, I thought it took some stones to attack a recent Supreme Court decision right in the face of the justices -- particularly one which isn't obviously unpopular (I think it likely is unpopular, but it isn't the sort of pitchforks and torches decision that, for example, a ruling striking down "under God" from the Pledge would have been). At the same time, Justice Alito mouthing to himself "that's not true", which I didn't notice live, didn't really bother me that much either -- I don't think he meant it as a "you lie" moment, and my instinct was to not make a big deal about it.
But apparently others are. Glenn Greenwald's argument is that Alito has made himself into a political figure: a political hero to the right, and a political enemy of the left, and that's inconsistent with his role as a judge. It's a fair point, although it's easy to overstate the impact -- it's just a more explicit exclamation point on something the general public already is well aware of: there are liberal judges who like and are liked by liberals, and conservative judges who like and are liked by conservatives.
Meanwhile, Jeffrey Rosen sees this as an opening gambit for Obama to attack "conservative activism" by the Supreme Court. Rosen claims that historically, it hasn't taken much explicit executive pushback to see a court labeled as "activist". One thing I like about it is that it helps balance out years of Republican claims that conservative judging is about common sense and rule of law (there's a paradox there, but no time to discuss it), whereas liberal judges are just making stuff up because they spend too much time reading deconstructionists (or something). This is a chance for liberals to strike back a little bit and cast the conservative wing of the court as the one that is out of step with history, precedent, and the American people.
"An independent judiciary does not mean, of course, that it is somehow improper to criticize judicial decisions." - Sandra Day O'Connor
ReplyDeleteI think Obama did as much as possible to make it a criticism of the decision and not at all of the Court. First, he prefaced his statement with a nod to the separation of powers. Second, he didn't even say the Court had gotten the Constitution wrong by overriding precedent. Nor did he claim that the decision was made out of political or ideological biases, as Sen. John Cornyn has said about other decisions (not that this prevented Cornyn from criticizing Obama's far milder remarks -- "I don't think the president should have done what he did in trying to call out the Supreme Court for doing its job. They are the final word on the meaning of the United States Constitution, even when we don't like the outcome." -- because Cornyn is a shameless tool).
Obama just noted the possible consequences of the decision and asked Congress to "pass a bill that helps to correct some of these problems." This is what Congress has done in the past in response to Supreme Court rulings (e.g. Religious Freedom Restoration Act as a response to Smith v. Employment Division), and then the RLUIPA in response to Boerne v. Flores).
I don't quite understand how it's suddenly improper for POTUS to criticize the actions of the Supreme Court. Chastising Congress is like a recreational sport at State of the Unions (States of the Union?), and they're a separate branch of government too.
ReplyDeletePresident & Congress -- political branches that are supposed to make decisions for political reasons.
ReplyDeleteArticle III judges -- unelected, lifetime-tenured branch that is supposed to make decisions for nonpolitical reasons.
I guess. If you accept the premise.
ReplyDeleteI think they always make decisions for political reasons, they're appointed for political reasons, and everyone responds to their decisions based on political reasons, so let's not kid ourselves.
I think they always make decisions for political reasons, they're appointed for political reasons, and everyone responds to their decisions based on political reasons, so let's not kid ourselves.
ReplyDeleteAnd if everyone agreed with you, there would be no reason to bother having judicial review that pretends to be based on the Constitution but really is just raw political ideology being exercised. Instead, let the majorities in legislatures do as they will.
Keep in mind I define politics fairly broadly. I probably should have said "often" instead of always.
ReplyDelete