Those gosh-darned activist judges

Let me start by saying I thought Barack Obama’s comments regarding the possibility of the Supreme Court’s over-turning his health-care legislation were correct, but I would have, had I been in a position to do so, advised him against making them. They were sure to be characterized, as they have been, as an attack upon the Court and the independent judiciary.

Of course, hypocrisy is the stock-in-trade of Republican leadership (“deficits don’t matter,” so cut taxes v. “deficits! eek!” so cut social spending, for example), and the Rs rushed to the defense of their five conservative justices on the high court, ignoring decades of over-blown rhetoric aimed at intimidating judges who might rule in ways contrary to their own ideology.

There is history behind this. States-Righter Andrew Jackson, peeved by the Court’s decision against the state of Georgia, which sought to seize Cherokee lands where gold was thought to lie, in Worcester v. Georgia, drew a bead on the Chief Justice and growled, "John Marshall has made his decision; now let him enforce it."

And, of course, some of us remember the reaction to the Warren Court’s striking down segregation:

More recently, Newt Gingrich was saying we should arrest judges.

Now, this isn’t to say the current high court isn’t even more overtly political. Respect for precedent is not the majority’s strong suit, and, as we saw in Citizens United, they don’t mind taking advantage of an opening when they see it. But attacking the judiciary branch politically, or even appearing to, is a mistake.

If you want to keep tabs on this issue, I recommend Justice At Stake.



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