They Were Against Judicial Activism Before They Were For It

Supreme Court Justice Antonin Scalia

A federal appeals judge has ordered the Department of Justice to clarify whether the President thinks the courts have a right to strike down a federal law, and to do so in writing by Thursday. Apparently our President was being uppity again in offering the opinion that finding the ACA unconstitutional would be unprecedented. And it would be, in the sense that to do so the justices would have to reverse some of their own precedents on points of law. But the mouth-breathers on the Right have decided the President doesn’t know that justices may find laws unconstitutional and are now defending Marbury v. Madision as the cornerstone of liberty.

By itself we might dismiss this as the Usual Clown Show. But Paul Campos writes at Lawyers, Guns & Money

A very distinguished professor of constitutional law — a man widely viewed as a conservative at least in legal academic circles — was asked recently to write an essay for a prominent conservative opinion magazine on some current legal controversies, including Citizens United decision and the ongoing litigation over same-sex marriage rights. He used the essay as an occasion to reiterate certain fundamental criticisms of the culture of judicial review, and in particular the mental habits that culture inculcates in judges.

The essay had gone through the editorial process and was in press when the Editor in Chief of the publication decided not to run the piece. Needless to say the author was both surprised and annoyed by this reversal, and had several conversations with the EIC about it. In sum, the EIC explained that it was now the policy — or what I believe in another time and place would have been referred to as “the line” — of the publication that it should not be encouraging basic criticisms of judicial review as a legal practice and cultural phenomenon “at this time.” In the course of these conversations it became very clear to the author that “at this time” meant “when this practice has once again become on the whole beneficial to the political goals of American conservatives.”

Now, add to this the influence of hard-right Super PACs. Thanks to Citizens United, the same puppet masters who gave us ALEC are using their money to elect right-wing judges at state level. Example

Like judges elsewhere, those in Florida remain rattled by what happened two years ago in Iowa, where three state Supreme Court justices who had upheld a ruling in favor of same-sex marriage lost their jobs after a vitriolic million-dollar campaign to unseat them — money coming almost entirely from outside the state. In the preceding decade, not a single dollar had reportedly been spent on Iowa’s high court elections.

So in order to keep their seats, judges up for re-election have to kiss right-wing ass. The Washington Post article linked in the paragraph above documents unprecedented amounts of out-of-state money being used to pick off state judges that conservatives don’t like.

And now the “line” is that maybe judicial activism isn’t such a bad thing after all. Stack enough courts with the “right” judges, and they can throw case law out the window and rule however they want.

James Fallows writes that people around the world are getting nervous about U.S. Courts. A reader from The Netherlands wrote,

And the reporting from the Supreme Court has been profoundly shocking – with conservative justices spouting tea party/talk radio talking points about broccoli and cell-phone mandates, and non-existent Cornhusker Kickbacks. Scalia’s ‘originalism’ is being demonstrated to be fundamentally hollow and partisan.

I am not an American and do not live in the US. But what is happening in the world’s most important and powerful democracy is shocking and frightening in the absolute, and does concern the rest of the world.

Fallows goes on to review recent cases, starting with Bush v. Gore, that showed the Court in bare-knuckles partisan mode. What the recent ACA hearing shows us is that at least some of the justices, Scalia especially, don’t even feel a need to pretend to be nonpartisan.

Certainly, past Courts have issued rulings with profound political implications; Dred Scott comes to mind. But for most of the 20th century the Court was a bulwark against the nation’s worst impulses. No more.

Update: See also Steve Benen writes about the federal judge’s demand from the DOJ:

This is not only ridiculous, it’s also an embarrassment to the federal judiciary at a time when the institution can least afford another setback in its credibility.

No matter what you think of president or this case, when powerful judges start acting like childish politicians, it’s cause for genuine concern about the integrity of our courts.

… and Kevin Drum:

Despite the fact that Kaersvang immediately acknowledged that courts can indeed strike down laws, the panel ordered her to “submit a three-page, single-spaced letter by noon Thursday addressing whether the Executive Branch believes courts have such power.”

Seriously? These judges are acting like a middle school teacher handing out punishment to a student because of something her father said at a city council meeting the night before. I’m a little hard pressed to finish up this post on quite the right note of jaw-droppitude, but luckily an attorney friend from the South just emailed me about this. Here’s his take:

This is meant to embarrass the President. Full stop. Jesus, this is getting scary. It just seems like all out partisan war brought by the Republicans from all corners of the Government. They want to push it as far as they can. And then further. It’s incredibly destructive.

14 thoughts on “They Were Against Judicial Activism Before They Were For It

  1. The groundwork for this has been laid over several years. Think how many times so-called Conservatives have smugly informed us that we live in a republic, not a democracy. I think this was, to the great mass of them, just a snide way to indicate their deep study of the Constitution. You know, like their constant references to The Federalist Papers. But fact is, we are moving toward the fascist state: corporate rule via government capture. This is, of course, saving the Republicans lots of money in the future: they will be able to go everywhere draped in a flag and holding a Bible over their naughty bits.

  2. Oh lord, they’ve heard of the “Cornhusker Kickback” in the Netherlands?!

    *Nebraskan hangs her head in shame*

    Seriously, though – this American hangs her head in shame. In a truly just universe, as Roger B. Taney’s personal hell would be to exist as a fugitive slave, Antonin Scalia’s would be as an indigent colon-cancer patient, and Anthony Kennedy’s as an African American arrested on already-paid parking tickets and perpetually strip-searched by Deputy Buford T. Firehose.

  3. Not to get all Jacksonian, but supposing the DOJ just ignores the insulting order to deliver this silly letter, what is the judge going to do about it? Who is supposed to enforce any contempt order the judge chooses to issue?

    This order deserves to be treated with contempt.

    If I had to write such a letter, I’d probably spend three single-spaced pages describing how ridiculous it was to suggest that the President didn’t believe the courts had the power, and how only a moron could have interpreted what he said to imply that, and then moving on to discuss the distinction between “could” and “should” and why it makes no sense to caution people against doing what they can’t do, since obviously they can’t do it in the first place, only to caution them against doing what they shouldn’t do. So clearly, the President believes the Supremes could but shouldn’t.


    • Not to get all Jacksonian, but supposing the DOJ just ignores the insulting order to deliver this silly letter, what is the judge going to do about it? Who is supposed to enforce any contempt order the judge chooses to issue?

      I was wondering the same thing. I don’t see anyone else discussing this, though.

  4. I’m struck by the fact that the judge refered to the ACA as Obamacare. It seems to me to be an incredibly sloppy description coming from somebody trained in the law.

    • I’m struck by the fact that the judge referred to the ACA as Obamacare.

      Tells us where the guy’s head is doesn’t t?

  5. Speaking of Marbury v. Madison, I’m sure Marshall’s opinion would come to well over 3 pages single-spaced. I would just print that out and submit it. What’s Judge Smith going to do then? Give the DOJ an F for plagiarism?

  6. Somewhere, despite their protestations about the process to the contrary, Conservatives are busy trying to clone Roland Freisler (Godwin knows whose favorite Judge) to take over for any spot on the SC, but especially CJ Robers spot, when he steps down or dies.

    We may now very well be AT the dangerous tipping point many of us long felt was coming.
    Conservatives are doing everything they can to grab power before demographics work against them – but they’re doing it in the most painfully in-your-face way to everyone except their base of white, mostly male Conservative neanderthal’s, that they seem to be practically handing the elections to the Democrats (who may still find several ways to blow it).
    Abusing the peoples right to vote.
    Abusing minority participation in the vote.
    Abusing minority peoples citizenship and loyalty.
    Abusing women.
    Abusing so many different long-established rights and institutions, that the mind reels.

    And if/when they lose, they will try to double down – saying that the present people/institutions failed them.
    Conservatism can’t fail. It can only be failed.

    Be prepared – batten down the hatches for some crazy years.They

  7. Seems the conservative court wants to change Barack’s name to Toby. “It’s a good Christian name”

  8. Funniest, cleverist cartoon – ok, photo shop – I’ve ever seen in my life. Hands down. Of all time. Where did it come from? It’s worthy of an award.


    [Note from maha — Hoppy has made several attempts to post here; this is a representative sample of his “work.” I refer Hoppy to The Mahablog comment policy, in particular items one and two, adding that one has to demonstrate an IQ somewhat higher than that of a turnip to get commenting privileges here.]

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