Here is a message/comment chain from my Facebook page in response to yesterday’s post on Obama and the court. I thought it was worth sharing here (w/out the names):
1. I think ost of the Warren Court decisions were just fine, but there were occasions when they did indeed overreach in the name of a greater notion of justice.
2. I think Obama is mainly still responding to the Citizen United campaign finance opinion when he warns about judicial activism. He still doesn’t have a majority on the Court, and he still does in Congress, so encouraging deference to legislative intent is still in his political self-interest. We’ll see if the rhetoric changes after mid-term … See Moreelections and the death or retirement of a conservative Justice.
I do agree with 1. that there was some overreaching judicial activism on the left. On criminal procedure for example. That being said, I’m confident Obama will nominate a liberal who he believes supports Roe v. Wade, affirmative action, and campaign finance reform.
3. Not to mention the ability of the feds to do things like the healthcare bill.
Me: I think, in the end, he will nominate a perfectly useful liberal judge in the Clinton-appointee mold. But I don’t think we should let him off the hook for using conservative rhetoric and playing to a conservative argument. It is a dangerous gambit, if it is only tactical, and much more troubling if it is philosophical.
I think we also have to be … See Morecareful about the Stevens replacement because anything other than a true liberal — someone to the left of Breyer — would push the court to the right. And let’s face it, he is not going to have a shot at replacing a conservative until his second term, if he gets one. The next justice to go will be Ginsberg, most likely, meaning he will be in a position to replace the three most liberal justices on the court on the day he was sworn in.
That makes appointing a true liberal justice imperative.
Plus, and I think this is key, the court is a co-equal branch. It is not to usurp the legislative role, but it has a responsibility to ensure that any action taken by the other two branches — or by the states — meets the guidelines set out in the Constitution and the amendments. That gives the court, I think, the responsibility to overrule the legislature when the legislature overreaches — a point that no one ever seems to talk about. If the judiciary can overreach, so can the other two branches, as we learned to the nation’s detriment during the Bush years.
As for the 60s-70s courts, I’m not sure which specific criminal procedure rulings you’re talking about. You’ll have to be more specific.
And so it goes. Any other thoughts?
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In case anyone cares, 1, 2, and 3 are all liberals. 1 is me. 3 is a lawyer.