Obama Supreme Court Warning: 'Conservative' Judicial Activism Is 'What You're Now Seeing'

WASHINGTON — President Barack Obama, preparing to make his second nominee to the Supreme Court, warned Wednesday of a "conservative" brand of judicial activism in which the courts are often not showing appropriate deference to the decision of lawmakers.

Obama made clear that his views on judicial restraint are not the only basis he will use in choosing his next nominee for the high court, a decision expected over the next few weeks.

But his comments underscore just how much he thinks courts are being vested with too much power and are overruling legislative will, a factor that will influence his nominee choice.

Obama already has openly criticized the Supreme Court for a January ruling – one led by the court's conservative members – that allowed corporations and unions to spend freely to influence elections. Obama has vowed to replace retiring Justice John Paul Stevens with a like-minded justice who will not let powerful interests crowd out voices of ordinary people.

On Wednesday, when asked about judicial activism as he spoke with reporters aboard Air Force One, Obama spoke of judges who ignore the will of Congress and the democratic process, imposing judicial solutions instead of letting the political process solve problems.

"In the '60s and '70s, the feeling was, is that liberals were guilty of that kind of approach," Obama said. "What you're now seeing, I think, is a conservative jurisprudence that oftentimes makes the same error."

He said the notion of judicial restraint should apply to liberal and conservative jurists. Instead, the president said arguments over original intent and other legal theories end up giving judges a lot of power – sometimes more power than elected representatives have.

Obama said judges should presume that the laws produced by the House and Senate and state legislatures should get "some deference as long as core constitutional values are observed."

Comments

[citizen1787]

12:19 AM on 05/10/2010

Why is geography and regional representation never brought up in the Supreme Court nomination process?

The western US is known for being more libertarian politically, yet this is not represented on the court.

Of the nine current Justices only two were born west of the Mississippi and none of them went to law school out west. Is the curriculum and instruction at all western US law schools inferior to institutions in the East? or just the connections?

The Midwest has two Justices and one is retiring and it looks like his replacement will be someone from New York city who went to Harvard.

Also, why are there no Americans of asian descent on the Supreme Court? Has one ever been nominated? and why is there only one protestant christian one the court in a country where protestants are the majority faith?

John Roberts- b. Indiana, went to Harvard law.

John Paul Stevens- b. Illinois, went to U. of Chicago BA and Northwestern Law.

Antonin Scalia- b. New Jersey, went to Georgetown BA and Harvard Law.

Anthony Kennedy- b. California, went to Stanford BA, the London School of Economics and Harvard Law

Clarence Thomas- b. Georgia, went to Holy Cross(Mass.) BA, Yale law.

Ruth Ginsburg- b. New York, went to Cornell BA, Columbia law.

Stephen Breyer- b. California, went to Stanford BA, Harvard law.

Samuel Alito- b. New Jersey, went to Princeton BA, Yale law.

Sonia Sotomayor- b. New York, went to Princeton BA, Yale law.

[deepintheheartoftejas]

01:19 PM on 05/01/2010

"In the '60s and '70s, the feeling was, is that liberals were guilty of that kind of approach," Obama said.

Now that's a depressing statement. But I'm not certain Obama really believes it. I think that's more his natural tendency to seek consensus and bi-partisanship by admitting the other side might have some valid points.

It's still worrisome to hear, even if it's just an automatic response. These are the family of decisions where the court finally got around to enforcing the letter of the bill of rights, instead of letting local, state, and even the federal government run roughshod over the rights of the powerless.

Personally, I'd prefer to get away from language like Judicial Activism. Judicial activism exists whenever the court makes a decision you disagree with, depending on what side you're on.

What Obama needs to be talking about is the heart of the problem: the current conservative court is not making particularly activist decisions. It's just making the WRONG decisions, putting precedents in place that destroy the spirit of an earlier generation of constitutional cases. Instead of backing free speech rights of citizens, they hand over the power of unlimited free speech to corporations, which already run virtually everything.

It's the constitutional equivalent of Republican tax & wealth policies: concentrating speech and political power into the hands of a very few, very powerful, very wealthy people at the expense of the common person.

[rubberneckduck]

01:31 AM on 05/01/2010

"In the '60s and '70s, the feeling was, is that liberals were guilty of that kind of approach," Obama said. "What you're now seeing, I think, is a conservative jurisprudence that oftentimes makes the same error."

OMG. Does this mean that President Obama sees the most important decisions of the 20th Century from Earl Warren's court as being "in error"?? Then that means everything from Miranda to Roe v. Wade to busing desegregation be overturned?

"But now, here is Obama giving credence to that idiocy with his sweeping, unspecified condemnation of the Warren and Burger Courts as "judicial activists." If, as Obama argues, some (or many) of the decisions of that era are "errors" of activist overreaching, wouldn't the current Court be justified in reversing them? And won't Republican Senators be justified in demanding that Obama refrain from nominating to the Court anyone whose records seems compatible with the defining judicial approach of those courts (since, after all, even Obama acknowledges they were in "error")? Why is Barack Obama walking around echoing the right-wing/Limbaughian view that the Supreme Court's decisions of the 1960s and 1970s were illegitimate, anti-democratic power grabs?"
http://www.commondreams.org/view/2010/04/30-3

[Proud Bay Man]

12:42 AM on 04/30/2010

I guess this explains the Pitt Bull ruling.

[Chip W]

08:52 AM on 04/30/2010

I'm not clear on whether this was a legitimate free speech issue, but I do think that those who are protected by this ruling should be gathered together and shot into outer space.

[nhpoet]

05:57 PM on 04/29/2010

Lani Guinier brought up an important consideration in the selection of the next supreme court justice - emphasizing "We, the People" for the high court. Several writers to a NY Times article spoke of President Barack Obama using the Earl Warren model - someone who hasn't been a federal judge but has knowledge or experience in the executive and/or legislative branches.

A broad "We, the People" approach to judicial decision-making would counter the current corporate mind-bent of the conservative activist majority of the United States Supreme Court. This is important due to the corporate pressures on our system of government that have veered the country away from the rule of law and ethics as well as our historic priority of the common good. We need democratic accountability from all three branches of our federal government - laws and policies and judicial rulings that benefit all of the American people as well as written and enforced according to constitutionality.

[carrot-top]

04:36 PM on 04/29/2010

It's time for another Tea Party. I never thought I'd have so much fun under the Obama regime.

[nhpoet]

05:58 PM on 04/29/2010

Are you saying "let the people eat cake!"

[JNagarya]

10:55 PM on 04/29/2010

Do you know anything at all about the original "Tea PArty"? Do you know, as example, that it WAS NOT anti-gov't? Do you know that the issue with which it was concerned was resolved BEFORE the "revolution"?

Do you know it was actually a complaint against the undercutting of profits made BY COLONISTS on SMUGGLED tea -- SMUGGLING being a CRIME?

Or does it only matter that far-right lunatic fringe history-illiterates have some pseudo-patriotic club to wave at not only the vast majority -- which vast majority WON the election -- but at the Constitution/rule of law itself?

[Keite Young]

04:15 PM on 04/29/2010

For the apolitical crowd, here's the big question:

Should President Obama choose a nominee to replace Justice Stevens according to what he thinks the jurisprudence of a Supreme Court Justice should be OR what he believes will achieve balance on the court. I ask this because I think that at this time, the to are mutually exclusive.

The Court has been tilted so far to the right that a nominee displaying the characteristics he seems to favor (empathetic, yet apolitical; qualified on paper, yet a compelling personal story; non-contreversial census builder) might not be able to balance out the court's conservative activist streak. The only way to achieve said balance with Justice's like Roberts, Thomas and Alito on the court seems to be to nominate someone who is clearly progressive politically speaking. Thoughts?

[jmoneymiff]

08:41 PM on 04/29/2010

The big worry there is getting the candidate approved by the Senate. The Republicans would filibuster anyone they deem too progressive.

[Chip W]

08:59 AM on 04/30/2010

Not answering your question, but I remember that when Alito was a judge in PA, he favored a law requiring a woman considering an abortion to notify her husband. Conservative "non-intrusive government" applies to economic matters, not individual's personal lives.

[pmc617]

03:50 PM on 04/29/2010

Justice Stephens was appointed by a Republican and insists he did not get more liberal as time passed, but that the court moved far to the right. The proof is in the bulk of their decisions over the past 25 years. Hopefully, for the good of the country, the pendulum is swinging back. This president may get four appointments, but they would only maintain the current balance.

[bobbybo]

02:48 PM on 04/29/2010

It is astonishing how quickly every discussion here breaks down to lefty vs righty. Let's all just put aside our political prejudices for just a few minutes.
What if the Pres is sincere in what he is saying here? If he is sincere, then the correct candidate for this spot on the court should be apolitical. If Pres Obama really wants to return the Court to it's intended role by the founders, then the next justice should not be identified as left or right leaning. If the Court is going to return to it's intent - to be the balance keeping both the Legislative and the Executive Branches in check. The litmus test should not be Roe v Wade or the Second Ammendment interpretation of the candidate.
The litmus test should be the candidate's understanding of Constitutional Law. We should be looking toward our Law School Deans, our Constitutional experts to fill this spot. If the court appointee is politically agnostic, then activism ends.
Maybe President Obama is looking beyond his 4 to 8 years and is looking at the survival of our system?

[uniquindividual]

06:48 PM on 04/29/2010

Apolitical is afantasy

[sharon40]

07:13 PM on 04/29/2010

It would help too if the appointee would be religiously agnostic too. Too
many of the justices are being controlled by the most conservative teaching of the Catholic Church.

[SagOne]

02:33 PM on 04/29/2010

http://huff.to/bzsGzs

[SagOne]

02:30 PM on 04/29/2010

The conservative justices are engaged in judicial activism. A couple of weeks ago on America and the Courts a C-Span show, Justice Scalia and Breyer were debating this very topic. The court interprets the Constitution. In doing so it gets to look at the intent of Congress, what the Congressmen were thinking, based on their writings, at the time they were considering a law. The court also follows the tradition of precedent and stare decisis..what came before stands, except...when it doesn't. A dissenting opinion then, may end up the majority now, or vice versa, and thus the law that comes for now. Scalia argued that the justices should not look at congressional intent, and that their intent is all that matters. Justice Breyer argued that the justices must look at what was going on at the time a law was made.He proceeded to set forth several reasons why that approach is useful for interpreting the Constitution. They also discussed what other countries had to say on a subject under review, especially England as that is where the body of American law and jurisprudence evolved. Scalia's reasoning not only lacked deference to the body whose Constitutionally enumerated task it is to LEGISLATE: to make laws, but his debate configured an authoritarian contempt for Congress. Scalia made it clear that he interprets the Constitution subjectively. That is legislating from the bench. That is political encroachment on the rights of man under the Constitution to suit an ideology.

[Keite Young]

03:14 PM on 04/29/2010

I agree...Scalia is happy to legislate from the bench. ESPECIALLY when its a Democratic Congress.

[SagOne]

05:45 PM on 04/29/2010

A&C: Supreme Court Justices Antonin Scalia & Stephen Breyer
Supreme Court Justices Antonin Scalia and Stephen Breyer debated their views on the U.S. Constitution, including giving their perspectives on what role the original meaning of the document should play in deciding the law. The Supreme Court Historical Society hosted this discussion at the Supreme Court on Tuesday.
Saturday, March 27, 2010 : Washington, DC : 1 hr. 6 min. (C-Span)

OOps sorry it was a month ago.

[davcrock]

11:00 PM on 04/29/2010

I've read several of Scalia's opinions on what is known in the law as statutory construction. In every one he explained that Congress is bound by the wording of the statute and that he does not think it is the place of the court to examine any other matters in deciding how the language of the statute will be construed. This is actually one of the more traditional views of construing statutes. The other main approach is looking at the legislative history to determine the intent of the wording. Both have their logic.

I'm not defending Scalia, only that it's unfair to characterize this aspect of Scalia's judicial philosophy as somehow radical. To any one who knows some law, this would not be a surprising statement from a judge. Heck better judges than Scalia have thought it. If I'm not mistaken, Judge Learned Hand used that approach, or near to it.

[SagOne]

02:26 PM on 04/29/2010

The conservative justices are engaged in judicial activism. A couple of weeks ago on America and the Courts a C-Span show, Justice Scalia and Breyer were debating this very topic. The court interprets the Constitution. In doing so it gets to look at the intent of Congress, what the Congressmen were thinking, based on their writings, at the time they were considering a law. The court also follows the tradition of precedent and stare decisis..what came before stands, except...when it doesn't. A dissenting opinion then, may end up the majority now, or vice versa, and thus the law that comes for now. Scalia argued that the justices should not look at congressional intent, and that their intent is all that matters. Justice Breyer argued that the justices must look at what was going on at the time a law was made.He proceeded to set forth several reasons why that approach is useful for interpreting the Constitution. They also discussed what other countries had to say on a subject under review, especially England as that is where the body of American law and jurisprudence evolved. Scalia's reasoning not only lacked deference to the body whose Constitutionally enumerated task it is to LEGISLATE: to make laws, but his debate configured an authoritarian contempt for Congress. Scalia made it clear that he interprets the Constitution subjectively. That is legislating from the bench. That is political encroachment on the rights of man under the Constitution to suit an ideology.

[uniquindividual]

06:53 PM on 04/29/2010

Scalia strict constructionism is radical and ironically does not conform to the original intent of the founders who knew the country would change and tried to set up a government that could change with the times.

Scalia has it COMPLETELY backwards. By his standard, slavery should be legal and women should not be allowed to vote.

[sanderson13]

01:04 PM on 04/29/2010

Am I missing something? I didn't know the Supreme Court had any responsibility to respect the "will of the Congress."

I thought the Supreme Court was to rule on issues of Constitutionality, and only that.

Do I have it wrong?

[Keite Young]

01:14 PM on 04/29/2010

Yes, you have it wrong. The Supreme Court shows deferrence to Congress. The in most cases, they try to come as close as possible to the intent of the legislative body. This is how they avoid what is known as "legislating from the bench. There are cases where laws are passed that break or flirt outside the boundaries of the Constitution. In these cases, the Supreme Court is obligated to deem the law unconstitutional.

[PallinAround]

01:34 PM on 04/29/2010

Uh, no -- YOU have it wrong. The Supreme Court shows no "deference" to Congress! Congress makes laws, Supreme Court interprets those laws as applied to the cases it hears and rules on the Constitutionality of those laws. There is no "deference" of one for the other. Sheesh - do you make this up as you go?

[sanderson13]

01:15 PM on 05/04/2010

Where do you get that from? That doesn't sound like the role of the SC, as laid out by the US Constitution.

[nhpoet]

06:07 PM on 04/29/2010

A non-attorney response to sanderson13:

Constitutionality is an interpretation of the current legal problem(s) of a case within the constitutional framework and existing law as well as the historical context (which includes legislative intent) which "colors" the metaphysical and epistemological (philosophical) aspects of judicial review.

[Kelly L White]

12:38 PM on 04/29/2010

America needs a rest button- constitutional convention, anyone?

Actually, with the split in the nation, that'd be a scary thought.

[nhpoet]

06:08 PM on 04/29/2010

What we need is a constitutional amendment against lobbying of government at all levels.

[sharon40]

07:16 PM on 04/29/2010

Ditto.

[jmoneymiff]

08:43 PM on 04/29/2010

That would be impossible to do. And many lobbyists are good for the country. Not all lobbyists are crooked big oil advocates.

[jasdmd0]

12:17 PM on 04/29/2010

Conservative Judicial Activism = Obama-speak for any judge that would make a ruling against a push by the executive branch of gov't to gain more power that isn't subject to the checks on balances of each branch of gov't that the Constitution lays out

[2bad]

12:31 PM on 04/29/2010

You must have him confused with exactly what George W. Bush actually did!

By the way, it's "Checks AND Balances"!

[WhatTheHolyHeck]

01:32 PM on 04/29/2010

Bingo. The president is referring solely to the court's primary function, which is to interpret the constitutionality of law and legal decisions.

Funny, the conservatives were all over this when it was the decisions of liberals they didn't like.

[nhpoet]

06:11 PM on 04/29/2010

Yes, but reformer presidential candidate Barack Obama promised to return this nation to the rule of law and ethics while so far the president Barack Obama has more than less followed the George W. Bush lead.

[PallinAround]

01:35 PM on 04/29/2010

Elections have consequences. Time to undo some of the damage from the Bush SCOTUS appointments after LOSING his 2 elections.