Obama's Criticisms of the Warren and Burger Courts

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:

Obama Says Liberal Courts May Have Overreached

In a seeming rejection of liberal orthodoxy, President Obama has spoken
disparagingly about liberal victories before the Supreme Court in the
1960s and 1970s -- suggesting that justices made the "error" of
overstepping their bounds and trampling on the role of elected
officials. . . .

Mr. Obama's comments, which came as he prepares to make a Supreme
Court nomination, amounted to the most sympathetic statement by
a sitting Democratic president about the conservative view that the
Warren and Burger courts - which expanded criminal defendant
rights, required busing to desegregate schools and declared a right to
abortion - were dominated by "liberal judicial activists" whose
rulings were dubious. . . .

Several conservatives said they welcomed an acknowledgment by a
Democratic president that the courts led by Chief Justices Earl Warren
and Warren Burger had sometimes overstepped their role.

I bet they did welcome it. 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?

It's one thing to argue, as Obama has previously, that it sometimes
makes more sense to accomplish political goals democratically rather
than through the courts, and that liberals in the past have been too
reliant on judicial victories in lieu of persuasion and organizing. As a
general strategic proposition, I don't disagree with that view. But
that has nothing to do with the proper role of judges, which is to
strike down any and all laws brought before them which violate the
Constitution. That core principle is the one Obama is disparaging.

In their NYT article this morning, Savage and Stolberg
suggest that Obama may be motivated by a desire to protect progressive
legislation from being struck down by the Roberts Court (as they did in Citizens
United):

John McGinnis, a conservative law professor at Northwestern
University, said, "[Obama's] party is in control, so of course he wants
deference" to legislation enacted by Congress in the current era.

That's a fair enough objective, but demanding judicial deference to
democratically elected laws is incredibly short-sighted and
destructive. As Bush critics tried (unsuccessfully) to explain to the
Right throughout the last decade, the party in power doesn't stay in
power forever. Principles that you endorse and powers you vest when
your party is in control don't disappear once the other party takes
control, as it inevitably will. The changes one party makes to our
political system endure once the other party takes control.

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.

The prime attitude of the Bush administration towards courts was
that they had no business interfering with whatever the Executive branch
and the GOP Congress decided to do. It's unsurprising that Obama is
now echoing that same perspective, but that doesn't mean it's harmless.
There are ongoing, very live disputes over the proper role of the
courts, and Obama, intentionally or otherwise, just bolstered the
right-wing arguments in those debates by embracing long-standing
cartoons of the Warren and Burger Courts.

UPDATE: With regard to the other topic
here from yesterday -- the
Obama DOJ's issuance of a supboena to Jim Risen -- see this
Washington Post article headlined "After reporter's
subpoena, critics call Obama's leak-plugging efforts Bush-like." The
article, by Howard Kurtz, explains that the subpoena "has convinced
some press advocates that President Obama's team is pursuing leaks with
the same fervor as the Bush administration" and includes this:

"The message they are sending to everyone is, 'You leak to the
media, we will get you,' " said Lucy Dalglish, executive director of the
Reporters Committee for Freedom of the Press. In the wake of the Bush
administration's aggressive stance toward the press, she said, "as
far as I can tell there is absolutely no difference, and the
Obama administration seems to be paying more attention to it. This is
going to get nasty."

It was once the case, not all that long ago, that those who pointed
out the extreme similarities between the Obama and Bush administrations
in these areas were accused of being hysterical, impetuous purists.
It's now the case that those who do so are guilty of nothing more than
stating the obvious.