President Obama has shown a much greater inclination than his predecessors to wade into matters before the Supreme Court. He took the occasion of his 2010 State of the Union address to castigate the Court – seated in the front row as invited guests but a captive audience – on their ruling in the campaign finance case known as Citizens United. Last week, he took the extraordinary step of warning the justices on a case not yet decided: the Affordable Care Act, or Obamacare.
“I’m confident that 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.” This is a remarkable statement; he seems to question the 200-year-old concept of judicial review. It raised all kinds of alarums, including from a Federal Court judge in Texas, hearing a different Obamacare case, who required a three-page single-spaced essay from the Attorney General confirming the court’s power.
People questioned the President’s motives. Was he threatening the court? Trying to persuade them as they deliberate in their chambers (if so, he picked an awkward way of doing so)? Or was he, as some suggested, preparing the narrative for the campaign ahead in case the decision goes against him: blame the court.
I believe there are elements of something deeper going on, and the clue is to be found in an interview Obama gave to Chicago’s public radio station back in 2001 when he was a law professor and state legislator. Discussing the Warren Court, Obama said it “never ventured into the issues of redistribution of wealth” and therefore “it wasn’t that radical.” He goes on to say, “it didn’t break free from the essential constraints that were placed by the founding fathers in the constitution, at least as it has been interpreted … that the constitution is a document of negative liberties … says what the federal government can’t do to you but it doesn’t say what the federal government or state government must do on your behalf.”
This is very revealing, and frankly shocking. The man who would later be President is not only saying that the most liberal court of the postwar era was not sufficiently liberal for his taste; that would be noteworthy enough. But he goes on to suggest that it should have “broken free” of the centuries-long tradition of following the Constitution “as it has been interpreted” and instead opt for a more directive approach – telling the government not only what it cannot do but also what it must do.
This turns centuries of jurisprudence on its head. As far back as 1788, in Federalist Paper #45, James Madison set the principal that has been followed ever since: “The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite.” Madison knew that centralized power is like a vortex, that it tends to accumulate more power unless there is an institution specifically set up to enforce the limitation that the founders intended. And Obama wants the Supreme Court to make up obligations that do not appear anywhere in the Constitution and establish them as duties of the government equal in standing to the constraints we have been rehearsing for all these years.
There has been a lot of talk about “judicial activism” lately. It has been bandied about by both sides so much that it has come to mean the court deciding any case in a way that one disapproves. But the original meaning, and the one that still gets conservatives riled up, is when the court makes stuff up and declares it to be the law of the land. Obama’s notion of the court telling government “what it must do” is a perfect example of that.
And of course, for Obama, what he wishes the court told the government to do is to redistribute wealth. In other words, on the single greatest tug-of-war in American politics through the years, the conflict between freedom and equality, he wants the court to declare victory for the equalizers. He wants Lady Justice to lift the blindfold and put her finger on one of the scales. Rather than an impartial referee, he wants the court to be a player – and on his team.
This is fully consistent with the “empathy standard” for Supreme Court justice candidates that Obama described after he took office: “we need somebody who’s got the heart—the empathy—to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor or African-American or gay or disabled or old—and that’s the criteria by which I’ll be selecting my judges.” What can this mean, except an active attempt on the part of justices to shape their decisions by their results, rather than by the impartial application of the law?
Sonia Sotomayor, while a nominee to the high court, spoke of her qualifications as being a “wise Latina,” expressly stating that her background will enable her to make “better decisions” than, say, a white male jurist, however distinguished. That can’t possibly mean she is better able to decide the case on the merits of the law, but rather that she has a “better” perspective from which to target specific outcomes. Doesn’t this mean precisely that two separate defendants in identical cases, but where one is a white country clubber and the other a black inner city rapper, will receive different judgments?
A court like this is expressly political. Its decisions can – and should – be influenced not simply by studied contemplation of the relevant case law but by outsiders pointing out to the justices what the “right” outcome would be. President Obama did precisely that in his remarks last week. Of more note than the “unprecedented” comment was this admonition that preceded it: After Obama described how people are gaining benefits that they would lose if the law was overturned, he said, “I think the justices should understand, that in the absence of an individual mandate, you cannot have a mechanism to ensure that people with preexisting conditions can actually get health care. So there’s not only a economic element to this, and a legal element to this, but there’s a human element to this. And I hope that’s not forgotten in this political debate.”
In the political debate, sure, bring all those issues up and chew them over. But within the chambers of the Supreme Court? I don’t want the justices to uphold an unconstitutional law just because the consequences would be bad if they didn’t. It’s Congress’ job to write effective legislation that passes constitutional muster; it’s not the job of the Supremes to wave it through anyway just because it’s a big deal.