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Activist Judges, Class Is in Session

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The professor-in-chief held an impromptu seminar in constitutional law last night on Air Force One, and he drove home a powerful lesson. In a conversation with reporters, President Obama attacked conservative judges for cloaking their activism in "legal theories" like "original intent," and called for "judicial restraint" -- which means, in the President's book, that courts should give greater deference to the actions of legislatures, state and federal, "as long as core constitutional values are observed."

Whether he knew it or not, Mr. Obama was echoing what Bushrod Washington -- the nephew of George Washington and a justice of the Supreme Court -- said in 1827: "It is but a decent respect due to the wisdom, the integrity, and the patriotism of the legislative body, by which any law is passed, to presume in favor of its validity, until its violation of the Constitution is proved beyond all reasonable doubt." This was one of Franklin Roosevelt's favorite quotations, and he repeated it often during his battle with the conservative judicial activists of the 1930s.

During FDR's first term, the Court overturned acts of Congress at ten times its traditional rate. As I describe in my new book, Supreme Power: Franklin Roosevelt vs. The Supreme Court, no Court in history had ever struck down so many laws so quickly. To accomplish this, the conservative majority disinterred long neglected doctrines and breathed new life into obscure clauses of the Constitution. The Court was creating "new doctrine now faster than I can absorb it," complained Justice Harlan Fiske Stone. The law schools exploded in outrage. Thomas Reed Powell of Harvard decried the Court's tendency to "pick new, strange clubs out of the air to swat at anything that it doesn't like." (As E.J. Dionne pointed out this week in an excellent column, conservative judges get very inventive when they feel that the survival of civilization is at stake.)

This period of judicial assertiveness was also, not coincidentally, the high-water mark of judges' timeless insistence that they did not make law; the more aggressive they grew in overruling legislatures, the more they assumed a posture of humility and passivity. The Constitution, they said, meant just what it said it meant, in plain language, and a good judge merely followed its dictates. Fit the words "original intent" into that sentence and you can imagine hearing it from one of the conservatives on the Roberts Court. In the 1930s, Chief Justice Charles Evans Hughes worked hard, if unsuccessfully, to rein in his most extreme brethren. Chief Justice Roberts, by contrast, seems to have thrown in his lot decisively with his Court's no-holds-barred crusaders.

Today, with a confirmation battle looming, it is encouraging to see that Mr. Obama is ready to explode the right-wing conceit that only liberal judges can be "activists." His critics may deride him as a "professor," but all successful presidents, regardless of party or ideology, understand that educating the public is an important part of the job. President Obama may have begun to do what Felix Frankfurter of Harvard advised FDR when the Court started striking down the New Deal: "take the country to school," Frankfurter said; launch a campaign of "quiet education" about the Court's proper role and the ways in which activist (our era's word, not his) justices were overstepping it.

So I, for one, hope that President Obama does a little more teaching. If it were up to me, his next lecture would refute the idea that conservatives have some kind of monopoly on divining the "original intent" of the framers. Then he could attack the fiction that the founding fathers' intentions are nearly always straightforward (and relevant) and run invariably in the direction of smaller, weaker government. Alexander Hamilton would be rather surprised by that claim. So, for that matter, would John Marshall.

Beyond this, I hope the President will begin to address some much larger questions: beyond the narrow objective of upholding his programs, what does he really want from the Supreme Court? Roosevelt had a clearly defined vision of what he wanted--and his appointees, for the most part, fulfilled it. What role does Obama see, or seek, for courts and judges in the 21st century? And what, most importantly, does the Constitution have to say about the challenges we now face as a nation? Here are some areas where we all could use some serious, enlightened instruction.