Wednesday, April 4, 2012

EARTH TO CONSERVATIVES: Compared With Jefferson, Obama's Comments About the Court Are Harmless

Conservatives have blasted President Obama's argument that the Supreme Court should not invalidate the Affordable Care Act. Some of the conservative blog commentary is absolutely despicable -- describing Obama a "buffoon," among other degrading terms.  These arguments are also ahistorical.

Presidents have criticized and disagreed with the Court throughout history. In the recent past, the Court's ruling in Lawrence v. Texas angered conservatives. Lawrence invalidated a Texas law that banned sexual conduct between individuals of the same sex. In response, conservatives blasted the decision, and President Bush proposed a constitutional amendment banning same-sex marriage.

In addition, conservative presidential candidates, including Newt Gingrich, Rick Perry, and Ron Paul, have proposed legislation that would severely undermine the Court's autonomy. Also, the GOP Party Platform has repeatedly condemned "judicial activism," Roe v. Wade, and rulings that invalidate policies commingling religion and government (see, e.g., here).

FDR probably has the most noted history of judicial conflict. He repeatedly condemned the Court after it threatened the New Deal legislation. Roosevelt also proposed a "court-packing" plan that would have allowed him to stack the bench with justices who shared his views regarding the Commerce Clause.

But Thomas Jefferson probably holds the record for the most outlandish interference with the Supreme Court. Jefferson and the Democratic-Republicans proposed and passed legislation that shut down the Court for a two-year period. The Jeffersonian Congress wanted to prevent the Court from reviewing its decision to repeal legislation implemented by the lame-duck Federalists.

Jefferson also had very harsh words for the concept of judicial review. Jefferson said that allowing the Court to have the final say on the meaning of the Constitution would "place us under the despotism of an oligarchy" (p.4).  Furthermore, Jefferson rejected a Court-ordered subpoena to testify at the treason trial of Aaron Burr, arguing that the Court could not exercise authority over the President. Jefferson also asked Congress to initiate impeachment proceedings against Justice Samuel Chase, who disagreed with Jefferson on policy related to the federal judiciary.

Because of his animosity towards the Court, conservatives often cite to Jefferson to support their own opposition to judicial review. Newt Gingrich, for example, recently invoked Jefferson's legacy in order to justify his proposal to eliminate the Court's autonomy.

Today, however, conservatives are angry because Obama has simply encouraged the Court not to invalidate legislation. Compared with a history of presidential criticism of and interference with the Court, Obama's comments are pretty innocuous. But in today's political climate, facts are trivial, and hypocrisy rules.

For other articles on this issue, see:

Conservative Judge Validates Obama's Concern Over Judicial Activism

1 comment:

Infidel753 said...


Far out of range, I fear.

As you point out, modern right-wingers have repeatedly railed against "judicial activism" whenever a judge issues a ruling they don't like -- they're known for it. In attacking Obama over this, they've reached a sort of transcendent Nirvana of hypocrisy.

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