Talking to reporters on Air Force One yesterday, President Obama pointed out, no doubt rightly, that conservative federal judges have been engaging in their own brand of activism. I heard the soundbite on “Morning Edition,” and here it is in print, from CBS:
In the ’60s and ’70s, the feeling was, is that liberals were guilty of that kind of approach [i.e., imposing judicial solutions to problems more properly addressed by legislatures]. What you’re now seeing, I think, is a conservative jurisprudence that oftentimes makes the same error.
Once again I’m clueless about what the President may really think about a historical subject that he has made a point of bringing up. He sounds as if he only wants to push things back toward some non-activist center. “Yes,” he seems to say, “courts were indeed too activist on behalf of liberalism in the ’60’s and ’70’s, but then conservative courts overcompensated, repeating the error for the other side, so it’s time now to arrive at the cool center. I’m the guy to do that, so if you don’t like judicial activism, don’t worry.”
And yet … Is it likely that Obama really deems the liberal courts of the ’60’s and ’70’s inappropriately activist? Roe v. Wade and affirmative action and all that? He’s forever invoking these historical issues, and the fact that I can’t form reliable hypotheses, by listening to what he says, as to what he actually thinks about them, or know if he’s really thinking about them at all, keeps bugging me. The intriguing thing about his soundbite is that whereas its structure suggests he wants to provide a balance that will make the federal judiciary not activist in either a liberal or a conservative way, what it actually says is that “there was a feeling” — not necessarily Obama’s — that the liberal courts were too activist; and that now, in his view, the conservative courts really are too activist.
So maybe he sees the old liberal courts as inhabiting the center he now looks to regain, and is being careful to frame that view in popular knee-jerk terms of the right’s purported horror of court activism. It’s an old and clever trick: pretend to take your opponent’s bogus rationalizations seriously, thus pressuring him to act consistently with that rationalization when — ta da! — you unexpectedly spin it your way.
But does that kind of smarter-than-thou conjuring ever really work? Are people who think “judicial activism = bad” now scratching their heads and saying, “Hey… I don’t like judicial activism… no matter who it’s for… so I guess the President is OK on this”? Are they being lulled into feeling less fear about the next Supreme Court nominee’s potential degree of liberalism? Some might simply be irritated, one more time, by the insult to their intelligence implied by attempted spin.
With this undeniably brilliantly hard-to-pin-down reading of the history of the federal judiciary (this slick and tricky reading?), Obama manages to claim a temperate center even while declaring war on Justice Roberts. That’s a strange and interesting mix. Anyway, he sure does keep things interesting …
William Hogeland 