Why Obama warning the Supreme Court is a "bad thing"

A country’s highest elected representative warns its most important judicial body that their review of a controversial piece of legislation against the terms of the constitution is judicial activism and an attack by an unelected body on the needs of his government.  He promises to set up a judicial review to look at and, potentially, rewrite the powers of that judicial body.

Barack Obama before the Supreme Court?  Almost.  South Africa’s president Jacob Zuma before the Constitutional Court.

And that is the real danger when America or European countries threaten the judiciary or free speech in these terms; it creates the moral authority that real bastards crave to justify their own attacks on the rights and protections afforded their people.

“I’d just remind conservative commentators that, for years, what we have heard is, 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,” Obama said.

“I am 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.”

Obama’s choice of words is unwise and deeply troubling.

The purpose of any Constitutional Court is to act as a check on the power of the majority to overwhelm the law of the land with numbers.  The court’s powers are heavily circumscribed and are one of the key pillars of a viable democratic state.  Regular elections are insufficient to maintain public trust or ensure politicians take account of all needs, not just those of their supporters.  The courts are there to ensure that anyone may seek justice, not just the popular, wealthy or powerful.

Undermining the credibility of the Supreme Court by dragging them into the midst of the Culture Wars does not serve America and poses a devastating blow against the common law and political accountability in countries far more fragile than the United States.

Not a good day’s politics Mr President.  Not at all.

12 replies »

  1. A very disturbing bit of news. What, we’re supposed to just let power consolidate and have a Supreme Court that specializes in hand-wringing? I might not agree with much that comes out of this particular 5-4 body, but the undertones in President Obama’s statement are chilling.

  2. Gavin: this is another of those times when I feel like it would be good if you lived here. It is very true that chief executives intimidating an independent court is bad for democracy. No argument at all. The problem is that our court has sadly become VERY politicized and partisan. If you think Obama is wrong in what he is suggesting, you haven’t looked closely enough at the records and ties of Scalia, Thomas, Alito and Roberts. They’re what happens when you have cynical Republicans packing the courts with far right activists and corporatists and the Democrats letting them.

    Maybe it’s splitting hairs, but you regret that Obama says what he did. I regret that he felt it necessary.

  3. I think Gavin is right. Two wrongs do not make a right. The Supreme Ct is overly politicized, but doesnt need arm twisting from the Exec Branch. This is one of those times where I think the distance helps Gav see it better than those of us up close.

  4. I’m no lawyer and certainly no US constitutional expert, however, I wonder if any US president has accused the Supreme Court of acting against the government’s right to enact laws when it passed judgement on Roe vs Wade, or any of the US more “liberal” laws?

    Many of these were decided base on individual rights. My understanding is that the current case also hinges on whether the state may compel individuals to purchase health insurance. Those against Obamacare believe the state has no such right. Surely, for something so fundamental (and which could potentially set a precident for the state to compel other individual purchases), it is up to the president to defend his bill, not the Supreme Court?

    • There have always been partisan swings, but this is a little different. We’re now talking about a bought court. It is one thing to have a particular view of the law. It is another thing to be in somebody’s pocket.

  5. I’d also offer one more note. Obama’s comments are political and are intended to perhaps influence. Comparing them with a thug like Zuma is really apples to oranges – Zuma’s comments might legitimately be taken as a threat.

  6. @Sam, Oh, Zuma’s aren’t a threat … he’s really doing it. My point is that, while Obama’s point may be well-founded, the nuances of US politics simply don’t translate. Zuma can now – legitimately – say, “Why are you questioning my attack on the judiciary? Barack Obama does this, it is what presidents do.”

    China gets to say, we repress insurrection just like the Americans do to OccupyWallstreet. The Pakistanis can say, we monitor our internet, just like the British.

    I don’t see how Western societies “win” when freedom and respect for law is up for debate.

    • I don’t buy your logic. Obama questions the judiciary, Zuma kills them (or whatever). If I thought there was any parallel, then I’d think that a parent scolding a child justified, in a deranged parent’s mind, killing a child. I mean, DO people like Zuma cast about for justifications? Sure. Does that mean anyone takes them seriously? Does it mean that without that justification they wouldn’t do what they’re doing?

      Not really, no.

  7. Ah @Sam, this is where spending a year or two outside the US would help you 😉 The end of the Cold War changed the way Dictators Dictate.That round of “people power” ended not just the Communist dictatorships of Eastern Europe, but also the Latin American dictators, many in East Asia and also that of South Africa. The US and Europe proved that democracy is more powerful. It was really triumphant about it to. You remember “The end of history”?

    Dictators adapted. The illusion of democracy became really important. So there are regular elections, even if the ballots are stuffed; courts, even if they’re toothless and pliable.

    Still, not all dictators are created equal. Some are merely corrupt and small. These are the people who quickly gave up power and pursued democracy when the winds changed. Now they sense the winds changing again. China is triumphant. Europe and the US actively question whether state-led and controlled societies are “better” than the messy democracies they have.

    And there are the new rounds of “people power” spreading across the Magreb, all casting off the dictators who enjoyed the mere appearance of democracy. As they look for new models of governance, wouldn’t it be nice if Americans appeared to actually believe in the rule of law and the constitution they wrote?

    Good governance and balance of powers really does require masses of self-belief even when it goes against your desires. If the people most famous for championing it stop believing, why should anyone else?

    • I see your point. I just don’t know to what extent I think it matters. Will they do what you say for the reasons you describe? Sure – I believe that totally. But they’d do it if he said the opposite, too, and nobody of consequence is fooled, right?

      • Also, yes, setting a good example would be fantastic. But at some point it’s probably fair to ask at what cost? You want to show the world you believe in the principles of democracy and so forth, but if you hold onto that too long you find the vandals coming over the walls.

  8. Considering how passive and inept Obama has been with his bully pulpit, I was both appalled by the silliness of his viewpoint (this count will defy his opinions, and other courts have defied stronger leaders) but also began pondering the political impact — that it allows Obama to survive whatever the decision. And shows some chutzpah, though intellectually naive. Subject for my next column.