Obama speaks about the Supreme Court

Echoing a long-standing claim of the Right, he accuses the Warren and Burger Courts of judicial activism

Published April 29, 2010 2:30PM (EDT)

(updated below - Update II)

President Obama gave an interview last night aboard Air Force One in which he was asked about his views of the Supreme Court, and this is what he said:

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. 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 oftentimes makes the same error.

The reason this is so striking is because it's long been a right-wing Article of Faith that the Supreme Court in those two decades -- the Warren Court (until 1969) and then the Burger Court -- was guilty of so-called "judicial activism."  Conversely, liberals have long viewed those two courts as the high point of the judiciary's protection of Constitutional liberty, and with good reason (note that defenders of Elena Kagan have been claiming she'd be "the next Earl Warren," which they mean as a compliment).  Those were the Courts of William Brennan, Thurgood Marshall, William O. Douglas, and Hugo Black, among the most admired progressive Supreme Court Justices of the last century.  I'd really like to know what Obama means specifically when he adopts the Right's view by condemning those courts as being guilty of "erroneous" judicial activism.

The Supreme Court in the 60s and 70s produced many of the decisions most cherished by mainstream progressives.  That was when the right to privacy was first recognized in Griswold, anti-miscegenation statutes were struck down in Loving, public school officials were barred from imposing sectarian prayer in Engel and mandatory Bible readings in Abington, defendants' rights were safeguarded in Miranda, the right to counsel was mandated in Gideon, reproductive rights were protected in Roe, religious freedoms were enhanced in Sherbert, Fourth Amendment guarantees against unreasonable searches and seizure were strengthened with the exclusionary rule in Mapp and by application to telephone eavesdropping in Katz, critical First Amendment safeguards were enforced in Brandenburg and The Pentagon Papers case (NYT v. U.S.), the rule of law was aggressively applied to Richard Nixon when the Court unanimously ordered him to comply with Congressional subpoenas, and the promise of equal protection enshrined in Brown v. The Board of Education (a decision of the Warren Court) was carried through with a series of decisions applying those principles to states and localities.

These decisions form the bedrock of progressive legal thought regarding the Constitution and the Supreme Court, which is why it's rather bizarre to hear Barack Obama condemn unspecified aspects of it as "judicial activism errors."  Shouldn't he be asked which specific parts of the judicial approach in these two decades he finds to be disturbing?  It's possible that he had something relatively innocuous in mind, that he intended to make a different point than the one he made, or that it was just a sloppy though typical effort to show how fair-minded he is by attacking the Dreaded Left, but the way he expressed it was a virtually complete replica of decades-old right-wing attacks on the Supreme Court.  Perhaps this explains why two of his reputed top 3 candidates to replace Justice Stevens are Elena Kagan and Merrick Garland (a former prosecutor whom Charlie Savage described this week by suggesting "that he could be more of a center-right justice in matters of criminal law").

* * * * *

I've written extensively about the U.S. media's refusal to use the word "torture" to describe what the United States does, while using that term promiscuously to describe the same behavior from other countries.  John Cole today notes a particularly egregious example of that distorting, government-subservient practice.


UDPATE:  Several people, in comments and via email, argue that Obama did not intend in these comments to endorse the view that there was judicial activism in the 1960s and 1970s, but merely that conservatives are being hypocritical in doing now what they accused liberal judges back then of doing (see here and here for two examples of that objection).  That's definitely possible; I explicitly acknowledged that there was ambiguity in what Obama said and that "it's possible that he had something relatively innocuous in mind," which is why he should be asked what he meant.  But I think my reading of his comments is, at the very least, reasonable, for reasons I explain here.  Perhaps we can hear a clearer statement from him on whether he thinks, as he seemed (to me) to say here, that liberal Justices in these two decades were guilty of the "error" of judicial activism and, if so, in which instances.

On a related note, The Huffington Post's Sam Stein today documents and examines Elena Kagan's support for some of George Bush's most controversial right-wing judicial nominees.  I suppose it's nice to learn that she's able to take a public position on something.


UPDATE II:  CNN has a moderately interesting update on Obama's search for Stevens' replacement:

The White House has begun finalizing its list of potential nominees for the upcoming Supreme Court vacancy, with many senior administration officials privately urging the president to name someone with a proven, "reliable" liberal record, according to sources closely involved in the selection process. . . . Government sources say top Obama aides have been getting an earful from liberals, who want to ensure a strong voice from the left is chosen, not a so-called "compromise" choice that could ensure a smoother confirmation this summer. They worry a nominee perceived as having a moderate-liberal record could lock Democrats into a position of never being able to win approval of future Obama judicial and executive branch nominees with more liberal views. . . .

One issue that has raised particular red flags on the left is executive power, and whether Obama has done enough to reverse the scope of anti-terror policies from the Bush administration dealing with detaining and prosecuting suspects. Some human rights groups say the current president and his aides have in some cases been too eager to embrace an expansive view of unilateral power. . . .

About 10 candidates remain on the "short list," which is now being pared down to about three or four finalists. . . . Sources with knowledge of the internal vetting process say the focus remains on three people: Solicitor General Elena Kagan; federal appeals judge Diane Wood, based in Chicago; and federal appeals judge Merrick Garland, who works in Washington.

Kagan is believed by many to be the leading candidate, but her lack of judicial experience and her work defending the administration's anti-terror policies worry some progressives.

These reports are anonymous, so take them for what they're worth.

By Glenn Greenwald

Follow Glenn Greenwald on Twitter: @ggreenwald.

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