The SCOTUS Kerfuffle

Carol Platt Liebau
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Posted: Jan 28, 2010 12:38 PM
By now, coverage of Obama's condemnation of the Supreme Court's corporate speech ruling is widespread.

Was it inappropriate for the President to criticize the Supreme Court?  Opinions may well differ -- and they reflect the different sides' understanding of the Supreme Court's role in American civic life.

I think it's always wrong for the President to condemn the Court in strictly political terms for a particular decision in a particular case -- as though the Court were a legislature.  That's because, in my (traditionalist) view of the Court and its role, justices are supposed to be arriving at judicial conclusions based on what the words of the Constitution compel, not based on their own policy preferences.  (That's how, for example, in this case, Chief Justice Rehnquist and Justice Thomas -- despite a probable lack of sympathy for pot smokers as a policy matter -- dissented from a holding that the federal government could prosecute users of marijuana under the authority granted by the Commerce Clause, even if local or state laws attempted to legalize marijuana.) 

In this traditionalist view of the Constitution,  it's not relevant to the justices whether corporate speech in elections is a "good" or a "bad" thing from a policy perspective.  They're not there to decide policy.  Rather, the only question for them is whether it's constitutional to limit the corporations' First Amendment rights.  And that's what, in this view, they're obligated to decide, whether or not they "like" the outcome as a policy matter.

In contrast, Obama's view of the role of the courts and the Constitution is a very different one.  Obviously, he's one of the believers in a "living" Constitution, where justices find hitherto unknown "rights" in the document without any firm textual grounding.  This approach, of course, turns adjudication into nothing more than an exercise in finding some way, however tenuous, to write one's personal policy preferences into the Constitution.  It's a dangerous path because it effectively turns the US into an oligarchy, where the Constitution means nothing more and nothing less than what a majority of the Supreme Court decides it means.

But in this Obama view of adjudication, it also means that justices are inherently political figures.  Therefore, there's no reason for them to be immune from political criticism of their work, which is itself inherently political.

And that's how the President of the United States could stand up and condemn the Supreme Court for its interpretation of the Constitution.  For those of us who believe that the document has a fixed meaning -- and that proper adjudication involves applying that fixed meaning to particular circumstances -- the criticism is an inappropriate breach of the separation of powers.  For someone with Obama's world view -- since judging is simply politics  by another means -- the criticism (though wrong, in my view) is hardly unexpected.

Even so, the hypocrisy was breathtaking.  No sitting President has ever launched a partisan attack on the Supreme Court -- in the State of the Union, with the Court sitting politely in front of him -- in the nation's history.  (And as a law professor, one would think he'd know enough not to alienate justices whose opinions may have some impact on his future success . . . they're only human, after all.)

Last night, we heard plenty from the President about the importance of civility and working together.  Perhaps he should start by setting the example. 

Oh, and if he's as smart as we've been told he is, maybe he should start by actually summarizing the Supreme Court decision accurately.  It's never good when one has to wonder if the President is simply confused by the decision, too lazy to check his speechwriters' claims, or so cynical that he's willing deliberately to misrepresent the holding of a Supreme Court case he wants to criticize for political reasons.