Nixing his health care reform law would amount to “unprecedented, extraordinary” judicial activism, Obama suggested.
Right on cue, GOP grandees chorused that the president was “threatening,” “intimidating” and “bullying” the Republican-majority high court.
Of course, who grouses about anything depends on whose ox is getting gored. But it’s conservative Republicans who seem to gripe most often about “judicial activism,” meaning rulings that they think lean to the liberal side.
“This concept of a ‘living Constitution’ gives unelected judges wide latitude in creating new laws and policies without accountability to the people,” complained President George W. Bush.
That bleat and 17 more nuggets like it – including hypocrisy from Mitt Romney, Rick Santorum and Newt Gingrich – can be mined on the Daily Kos website.
Anyway, a conservative, unelected judge made judicial activism possible. In Marbury v. Madison (1803), Chief Justice John Marshall broadly interpreted the Constitution and claimed our national charter included the power of “judicial review.”
He meant the Supreme Court (and lower federal courts) can decide if laws are constitutional or not.
Never mind that the phrase “judicial review” isn’t in the Constitution. The activist Marshall declared, “It is emphatically the province and the duty of the judicial department to say what the law is.”
Marshall belonged to the Federalist party, a bastion of bluebloods, wealth and privilege in his day. He had been a member of Congress from the Old Dominion and a secretary of state under President John Adams, also a Federalist.
Marshall ’s distant cousin and fellow Virginian, Democratic-Republican Thomas Jefferson, made Adams a one-term president in 1800. The Democratic-Republicans — a party of “cut-throats who walk in rags and sleep amid filth and vermin,” according to the hoity-toity Federalists — won majorities in both houses of Congress to boot.
A few weeks before he left office in 1801, the lame duck Adams named Marshall chief justice and a lame duck Federalist-controlled Senate approved the appointment.
It was no secret that Jefferson believed ultimate political power should rest in the hands of folks who cast ballots, not appointed judges. It was also widely known that Jefferson and Marshall were anything but kissing cousins; they hated each other.
Naturally, the defeated Federalists loved Marshall’s ruling, figuring it was a big time slam at Jefferson. The president was indeed irate over Marbury v Madison. Jefferson said that by asserting the power of judicial review, Marshall had doomed the country to “the despotism of an oligarchy.”
Anyway, presidents, starting with Washington, have consistently named to the federal bench jurists who shared their political perspectives. With few exceptions, judges and justices have pretty much toed their party’s line.
Some jurists have shown an independent streak, to be sure. But critics of the current court – often citing Citizens United — claim the five Republican nominees – the majority — are GOP loyalists brazenly doing all they can to help their party win elections. They’re “hacks dressed up in black robes,” according to a recent New York Times column by Maureen Dowd.
She’s hardly a partisan hack. Dowd rips Republicans and declaims Democrats with equanimity. Ask Bill Clinton and Al Gore.
Dowd likened the Supreme Court to a “fair and balanced” Fox News program: “There are liberals who make arguments, but they are weak foils, relegated to the background and trying to get in a few words before the commercials.”
She added: “Just as in the Senate’s shameful Anita Hill-Clarence Thomas hearings, the liberals on the court focus on process and the conservatives focus on results. [Chief Justice] John Roberts Jr.’s benign beige facade is deceiving; he’s a crimson partisan, simply more cloaked than the ideologically rigid and often venomous Scalia.”
Anyway, spare me the righteous indignation over Obama’s “brush back” of the high court, as Dowd put it. Cool it with the idea that Constitutional principles always trump partisan politics on the federal bench.
Visit the Supreme Court building. You’ll find chiseled on a marble wall Marshall ’s dictum that the law is what the federal courts say it is. For emphasis, the letters are painted in gold.
“Judicial review” is by nature “judicial activism.” But to the current GOP, that’s bad only if a judge’s or justice’s politics lean toward the left.