5.23.12
IBD:
The Judiciary: Controlling the politically insulated federal courts, especially the Supreme Court, has long been atop the left's to-do list. Since it doesn't own Chief Justice John Roberts, now the game is to shame him.
The battle over retaining the liberal politicization of the courts, symbolized by Chief Justice Earl Warren's tenure, goes back at least as far as President Nixon's failed nominations of Clement Haynsworth and Harrold Carswell in 1969-70; extended to the "borking" of President Reagan's nomination of Judge Robert Bork in 1987; and ultimately sank to the bottom of the gutter in the character assassination of President George H.W. Bush's appointee, Justice Clarence Thomas, in 1991.
President Obama took political meddling with the Supreme Court a step further when he stood before some of the justices assembled within the Capitol for his first State of the Union address. From that platform, he referred to the court's McCain-Feingold ruling, charging that "the Supreme Court reversed a century of law that, I believe, will open the floodgates for special interests."
Last month, the president contended that if the high court ruled ObamaCare unconstitutional, it would mean "an unelected group of people would somehow overturn a duly constituted and passed law" — which is the Supreme Court's duty of judicial review that it has "somehow" carried out since Marbury v. Madison in 1803, and which the Warren Court did in landmark liberal cases such as Brown v. Board of Education and Griswold v. Connecticut.
Legal icon of the left Laurence Tribe soon appeared to explain that his former Harvard Law student didn't really mean it. But despite the dubious alibis, Obama is obviously once again miming the president to whom he most wishes to be compared.
He may not be trying to pack the court with six new Supreme Court justices, as Franklin Delano Roosevelt did, but he certainly seems to think he might get his way with a conservative justice or two through public intimidation.
As the late Chief Justice William Rehnquist once noted, "President Roosevelt lost the Court-packing battle, but he won the war for control of the Supreme Court" — not only through appointments during his long tenure, but also through his rhetorical pressure.
Obama has been joined by legal commentators of the left such as George Washington University law professor Jeffrey Rosen. Writing in the latest issue of the New Republic, Rosen warns the chief justice of the United States that ObamaCare is "John Roberts's moment of truth."
Rosen contends that "In addition to deciding what kind of chief justice he wants to be, he has to decide what kind of legal conservatism he wants to embrace."
This was a favorite pastime of the late Sen. Ted Kennedy — instructing conservatives on the differences between acceptable and unacceptable versions of the political philosophy of which he was a mortal enemy.
A 5-4 vote against ObamaCare would render Roberts' hopes of establishing a less-divided high court "an irredeemable failure," Rosen declares.
Further, a Roberts vote against ObamaCare "would also be abandoning the association of legal conservatism with restraint — and resurrecting the pre-New Deal era of economic judicial activism with a vengeance ... when crusading judges struck down progressive economic regulations in the name of hotly conservative economic doctrines that a majority of the country didn't favor."
The pre-New Deal court? Why not just come out and accuse Roberts of thinking the Dred Scott slaveholder rights ruling wasn't really all that bad?
Roberts' thinking may not be as well-identified as that of Justices Scalia, Thomas, or even Alito. But we can be sure of this:
He's enough of his own man not to be cowed by politically motivated appeals — whether they come from a president or a lefty magazine.
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