Right-wing pearl clutching over SCOTUS

Posted by AzBlueMeanie:

The conservative talking point du jure that has all the right-wing propagandists clutching their pearls and feigning outrage, ranging from the inflamatory Rush Limbaugh to the always lame neoconservative opinion writers at the Washington Post (e.g., Ruth Marcus republished today in the Arizona Daily Star) is that President Obama: (1) threatened the U.S. Supreme Court; (2) threatens the "separation of powers;" and, naturally (3) the former law professor doesn't know constitutional law. (Always diminish him and attack his legitimacy — that is how the right-wing politics of personal destruction works).

First of all, these propagandists of the right-wing noise machine know neither the finer points of constitutional law nor their American history. They are propagandists after all.

Secondly, President Obama merely made the observation that the Supreme Court has traditionally exercised judicial restraint and deference to the legislative acts of Congress.

The quote that has the right-wing propagandists clutching their pearls and feigning outrage is:

I am confident the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically-elected Congress…

I just remind conservative commentators that for years we have heard the biggest problem on the bench was judicial activism or a lack of judicial restraint. That an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example and I am pretty confident that this Court will recognize that and not take that step…

As I said, we are confident this will be over — this will be upheld. I am confident this will be upheld because it should be upheld. And again, that is not just my opinion. That is the opinion of a whole lot of constitutional law professors and academics and judges and lawyers who have examined this law, even if they're not particularly sympathetic to this piece of legislation or my presidency.

Here are just a few of the Rules of Statutory Construction that "Professor" Obama clearly had in mind:

  • "When testing the constitutional validity of statutes, courts shall presume the statute to be valid."
  • "Every act of the legislature is presumed to be constitutional, and the Constitution is to be given a liberal construction so as to sustain the enactment in question, if practicable."
  • "When the constitutionality of an act is challenged, a heavy burden of proof is thrust upon the party making the challenge. All laws are presumed to be constitutional and this presumption is one of the strongest known to the law."

There is a strong historical comparison to the hostility President Obama faces from the "Felonious Five" conservative judicial activists of this Supreme Court to the conservative judicial activist Supreme Court that existed in President Franklin Roosevelt's first term. Andrew Cohen, a contributing editor at The Atlantic and a legal analyst for 60 Minutes, makes the case in an analysis at The Atlantic, For Barack Obama, Law Professor, the Time to Lecture Is Now (excerpts):

When President Obama on Monday (and again on Tuesday) offered his own legal analysis, when he accurately identified the hypocrisy the health-care law's defeat would reveal about "judicial activism," he raised for renewed public consideration the question of what a president should or should not say while a Court case is pending.

* * *

In this context, and especially compared with the past, what President Obama said was a virtual mash note to the justices.

On May 27, 1935, the United States Supreme Court announced its decision in Schechter Poultry v. United States. The justices ruled unanimously that Section 3 of the National Industrial Recovery Act, another one of Roosevelt's New Deal programs, represented an unconstitutional delegation of legislative authority to the executive branch. Four days later, an angry and frustrated president called reporters in for a press conference. Here's how Jeff Shesol, in his masterful book Supreme Power, describes what happened next:

He turned now to Schechter itself. "The implications of this decision," he said, "are much more important than almost certainly any decision of my lifetime or yours, more important than any decision probably since the Dred Scott case, because they bring the country as a whole up against a very practical question. That is in spite of what one gentleman said in the paper this morning, that I resented the decision. Nobody," he said, "resents a Supreme Court decision. You can deplore a Supreme Court decision, and you can point out the effect of it."

Which is what he did — point out its effects — for the remainder of his press conference. It was a remarkable performance. For nearly an hour and a half, Roosevelt spoke without notes, without interruption, slowing only occasionally to replace the cigarette in his ivory holder. Never had a president talked so directly, so extensively, or with such ease and fluency about the Constitution — its interpretation, its evolving meaning. His tone was calm and firm. His smile, which rarely left his face, failed to conceal his seriousness or, on occasion, his irritation…. Like a tenth justice delivering a dissent, he dissected the opinion.

Shesol told me Tuesday that while "FDR was generally pretty careful not to lobby (or warn) the Court about a pending decision… he did launch his court-packing plan — and set his supporters loose on the Court — at a time when the Court was considering the fate of Social Security and the National Labor Relations Act, both of which he (and pretty much everyone) assumed the Court would strike down." The Court, of course, dramatically upheld those statutes after a series of presidential speeches like this one from March 4, 1937:

The Democratic Administration and the Congress made a gallant, sincere effort to raise wages, to reduce hours, to abolish child labor, to eliminate unfair trade practices. We tried to establish machinery to adjust the relations between the employer and employee. And what happened? You know who assumed the power to veto, and did veto that program. The Railroad Retirement Act, the National Recovery Act and the Guffey Coal Act were successively outlawed as the Child Labor Statute had been outlawed twenty years before.

Soon thereafter the Nation was told by a judicial pronouncement that although the Federal Government had thus been rendered powerless to touch the problem of hour and wages, the States were equally helpless; and that it pleased the "personal economic predilections" of a majority of the Court that we live in a Nation where there is no legal power anywhere to deal with its most difficult practical problems — a No Man's Land of final futility….

Furthermore, court injunctions have paralyzed the machinery which we created by the National Labor Relations Act to settle great disputes raging in the industrial field, and, indeed, to prevent them from ever arising. We hope that this Act may yet escape final condemnation in the highest court. But so far the attitude and language of the courts in relation to many other laws have made the legality of this Act also uncertain, and have encouraged corporations to defy rather than obey it…

On March 9, 1937, in one of his fireside chats, President Roosevelt was even more blunt. To the American people, he said.

The Court in addition to the proper use of its judicial functions has improperly set itself up as a third House of the Congress — a super-legislature, as one of the justices has called it- reading into the Constitution words and implications which are not there, and which were never intended to be there…

We have, therefore, reached the point as a Nation where we must take action to save the Constitution from the Court and the Court from itself. We must find a way to take an appeal from the Supreme Court to the Constitution itself. We want a Supreme Court which will do justice under the Constitution — not over it. In our Courts we want a government of laws and not of men.

On Monday, by contrast, President Obama came before microphones and reporters to talk about another controversial federal statute. He didn't spend 90 minutes or so on topic. He didn't offer up legislation designed to reduce the Court's power. He didn't promise to save the "Constitution from the Court and the Court from itself."

* * *

Whatever else President Obama's comments mean, they aren't close to the line Roosevelt drew 75 years ago. And they don't even compare to the jaw-dropping remarks made over the past six months by Republican politicians — like Newt Gingrich — who believe it's a good idea to send federal marshals to the courts to enforce subpoenas against federal judges requiring them to appear before Congress to explain their decisions.

* * *

Methinks the Court's defenders here protest too much. In order to be reasonably perceived as "threatening" the Court, Obama would have to say a whole lot more than "I am confident that this will be upheld because it should be upheld." Moreover, to have the "threat" charge stick, the president would have to separate himself from the mainstream views of the conservative legal establishment. Yet he hasn't. He's not saying much different at all, in fact, from what former Reagan Solicitor General Charles Fried said about the Affordable Care Act after last week's contentious argument before the Court.

So perhaps the real question here is not whether President Obama, the constitutional scholar, has gone too far in rendering his opinion about the Constitution and the Care Act but instead whether he has not gone far enough. (emphasis added)

* * *

If Roosevelt could do it, why can't Obama? What's the difference between the Care Act and a future federal law that would force people to eat broccoli? Why is the health-care industry, by its very nature, national in scope and different from many other industries? Why wouldn't the Court give deference to such federal economic legislation? Justice Anthony Kennedy last week wondered whether the law wouldn't change the relationship between the government and an individual in a "fundamental" way — why does the president think that is wrong? And what other "limiting principle" would the president apply to the case?

He already owns the law — it's called Obamacare now even by those who support it, including Obama himself — so why shouldn't he be able to answer those questions and many more in public? The exercise wouldn't "threaten" the Court's ongoing deliberative process any more than the Court's public arguments last week threatened Congress or the White House. The justices aren't infallible. They aren't delicate flowers who mustn't be tussled. President Obama should fully speak his mind, now, before the Care Act rulings come out in June. There is plenty he can say about the law, and legal precedent, that won't bring the Court down. In fact, it just might raise it up. Time for class, Mr. President.

One final point: the same right-wing propagandists clutching their pearls and feigning outrage over President Obama's comments are going to be the first to call for the impeachment of this Supreme Court should they uphold the Affordable Care Act in whole or in part as President Obama reasonably believes. They will be exposed for their rank hypocrisy.

Comments are closed.