All History A Palimpsest

obamapeevedsm A left-liberal meme I’ve been seeing a lot lately has been pushback against “conservative judicial activism.” The talking point, which I have seen repeated numerous times in various forums over the past several weeks, is to try to pin one of its own frequent complaints on the right.

Now even President Obama getting in on the act:

Speaking to reporters last evening on Air Force One, in the context of his upcoming Supreme Court nomination, President Obama warned of “conservative judicial activism.” “In the ’60s and ’70s, the feeling was, is [sic] that liberals were guilty of that kind of approach,” he said. “What you’re now seeing, I think, is a conservative jurisprudence that oftentimes makes the same error.” That error? “Not showing appropriate deference to the decision of lawmakers,” the AP reports.

This is an utterly typical example of the meme as I’ve seen it promulgated of late. As you can see, it goes well beyond the usual technique of crafting a strawman and then whacking it. Rather, it is positively Orwellian. “Judicial activism,” as it has always been understood, does not mean curbing the tendency of legislatures to overreach their Constitutional powers. It means subverting the will of the people by enacting policies from the bench that the people won’t let their elected representatives pass.

Cato asks exactly the right questions:

[W]hich “activist” decisions from the ’60s and ’70s does this former constitutional law instructor have in mind? Griswold v. Connecticut (1965), where the Court found unconstitutional a state statute criminalizing the sale and use of contraceptives? Loving v. Virginia (1967), the same, concerning inter-racial marriage?

In short, for all that it was insipidly typical of the meme, Obama made a hash of it. As Cato notes, the real purpose of this meme is not to suggest that Obama doesn’t think miscegenation laws should have been overturned but to prepare the battlespace for Constitutional challenges to the policies Obama, Reid, and Pelosi have managed to cram through the legislature.

Obviously they want to promote “deference” to the legislature now. But one tends to doubt that they felt, say, that Lawrence v. Texas was inappropriately “activist” simply because it lacked deference to the legislature. Nevertheless, despite the fact that this attempt to flip the concept of judicial activism on its head can’t survive even minimal scrutiny, expect to see a lot more of it now that it’s reached all the way to Air Force One.

FILED UNDER: Barack Obama, Congress, Government, Law and the Courts, Politics 101, ,
Dodd Harris
About Dodd Harris
Dodd, who used to run a blog named ipse dixit, is an attorney, a veteran of the United States Navy, and a fairly good poker player. He contributed over 650 pieces to OTB between May 2007 and September 2013. Follow him on Twitter @Amuk3.

Comments

  1. Rick DeMent says:

    “this attempt to flip the concept of judicial activism on its head can’t survive even minimal scrutiny,”

    Oh for crying our loud only if you completely ignore about a dozen rulings that ignore states rights completely when convenient. Right to die, medical marijuana initiatives where over ruled for no apparent reason. Same with random traffic check points, I could go on an on listing the areas where conservatives on the court ignore or perform astounding feats of legal jujitsu to arrive at the ruling they see fit.

    Let face it your side is just as likely to use dubious reasoning to arrive at their desired outcomes as anyone. The only difference is conservatives are more willing to overlook blatant inconsistencies in the legal argument when they get the “correct” outcome from their team.




    0



    0
  2. Tim says:

    From the first I knew this was not crafted by the usual rino.




    0



    0
  3. Alex Knapp says:

    For most politicians and pundits, “judicial activism” = a law I like was struck down.




    0



    0
  4. yetanotherjohn says:

    Imagine if we had a watchdog press that would take the president’s statement and push for him to exolain and back up what he said.

    Alex is right that the charge of judicial activism is often leveled by the imprise as meaning I don’t like a court decision. James is right that the more “correct” term is enacting legislation from the bench. Passing new constitutional amendments is probably the worst example of judicial activism.

    A former constitutional law prof and president should be above imprecisely using a phrase like a common blog bomb thrower. I suspect a failure of the teleprompter.




    0



    0
  5. Franklin says:

    “Judicial activism,” as it has always been understood, does not mean curbing the tendency of legislatures to overreach their Constitutional powers. It means subverting the will of the people

    I should note that these are not opposites. Sometimes the people want unconstitutional laws (like flag burning), and it is absolutely the justices duty to strike such laws down.

    It obviously gets more difficult than this particularly straightforward case, though. So the rhetoric quickly becomes cries of judicial activism whenever something doesn’t go your way. And like most rhetoric, the best policy is to ignore it, which I will do in this case.




    0



    0
  6. Dodd says:

    Oh for crying our loud only if you completely ignore about a dozen rulings that ignore states rights completely when convenient.

    It’s more useful to address the point actually being made rather than something not even under discussion: “That error? ‘Not showing appropriate deference to the decision of lawmakers….'”

    I should note that these are not opposites. Sometimes the people want unconstitutional laws (like flag burning), and it is absolutely the justices duty to strike such laws down.

    I know. The point, as stated in the part you didn’t copy, is that judicial activism has always meant doing an end run around the people by “legislating from the bench” not acting as a check on their excesses.




    0



    0
  7. Franklin says:

    OK, I mean I agree with the overall gist of the post that Obama is just spouting off here with little obvious basis in law or reality. But perhaps I’d like to hear of a specific case or two of what is both a) considered judicial activism, and b) is clearly wrong. Is Griswold such a case? I assume everybody here agrees that inter-racial marriages shouldn’t be banned …




    0



    0