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.
Really. And which “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?
The list of Court decisions overturning “the will of the people,” as reflected by their legislatures, is long; and not all are correct. But viewing those decisions through the lens of “activism” and “restraint” is one of the least useful ways of determining that question. In fact, too often those labels distract us from the real issue, namely, disagreement over the meaning or implications of the constitutional, statutory, or regulatory provisions before the Court.
Obama’s objective, however, is hardly disguised. He fears that a “conservative” Court will be “active” in finding constitutional constraints on his agenda. We saw that in his reaction to the Court’s decision in January throwing out parts of the McCain-Feingold campaign finance law. And with more than 20 states now challenging ObamaCare, he’d like to have a Court “showing appropriate deference” to Congress.
On Monday the White House Office of Public Engagement invited me and three others over for an “off-the-record” discussion on the upcoming nomination. After making clear that my comments, at least, would not be off the record, I noted the obvious, that the president’s nominee would likely be in a tough spot during the Senate confirmation hearings, because one of the central questions he or she will have to address is whether, in light of ObamaCare, there are any longer any limits on the power of Congress to regulate. After all, if Congress can now order individuals to buy a product from a private company, what can’t it order?
In his comments last evening, Obama said judges should be deferential “as long as core constitutional values are observed.” Is there any constitutional value more fundamental than limited government, designed to secure individual liberty? The Constitution authorizes courts to actively secure that value, failing which their deference amounts to dereliction of duty.