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February 10, 2010

Supreme Arrogance

By John Griffing
It has been widely recognized that President Obama's attack on the Supreme Court during his State of the Union address was arrogant and rude. Obama broke with two hundred years of SOTU tradition and publicly humiliated and denounced the honorable justices of the Supreme Court in a move that should make Americans cringe. By using the privileged platform of his State of the Union address to attack a specific judicial ruling, Obama crossed a line that even many in his party have admitted was beyond the pale.

But besides emphasizing his brashness and immaturity, might there be a more serious significance to Obama's comments? Throughout his presidency, Obama has demonstrated a dictatorial mindset at odds with our constitutional divisions of authority. Perhaps he hopes he can one day neutralize the independence of the judiciary, Chicago-style. If so, it's time to put him in his place, and fast.

The division of responsibility called the separation of powers has been in place since America's inception, and it is indispensably vital to preserving the liberty of all Americans. This separation carries with it certain obligations on the part of the courts. The interpretation of the law, the protection of the people from combinations and conspiracies on the part of the other two branches, and the task of applying the law in day-to-day circumstances all come together to form the sacred duties of the American judicial branch.

Alexander Hamilton, great American statesman and one of the foremost authorities on the U.S. Constitution, had this to say as it relates to judicial power:

The complete independence of the courts of justice is peculiarly essential in a limited Constitution. ... Limitations ... can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

Hamilton further went on to suggest that

[... a] constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two ... the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

These words are the basis of modern American judicial review. Judicial review is a necessity growing out of a deep-seated awareness that an impartial third party must check the executive and the people's elected representatives. The judiciary serves this purpose because, as Hamilton noted,

[t]he Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever.

The judiciary is the least likely to harm the liberty of the people as a result of this legal reality. Consequently, Hamilton said,

It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive.

Hamilton did not believe judges the "ultimate arbiters of all constitutional questions," an idea that Thomas Jefferson feared. Hamilton acknowledged that his proposed role for the judiciary would be fallacious if judges "substitute their own pleasure to the constitutional intentions of the legislature." Hamilton in fact argued that if "they [the judges] should be disposed to exercise will instead of judgment," then it would prove "that there ought to be no judges distinct" from the legislature.

But this issue is not about whether the Supreme Court ever errs in its decisions. As long as men govern, mistakes will be made. The flaws of judicial review are irrelevant to this discussion. This is about preserving the separate spheres that make Barack Obama our president and not our king. Limiting the jurisdiction of the courts is a matter for Congress under Article III of the U.S. Constitution, not President Obama, our elected servant. Only despots claim the power to manage the courts. 

President Obama's recent meeting behind closed doors with eight of the nine Supreme Court justices constitutes another breach of constitutional restraint. What did Obama say to these eight justices that he couldn't say from the White House? Something is dreadfully wrong when the President of the United States brashly tars the carefully-arrived-at decisions of an institution that deserves respect. 

What pressures might Obama be willing to exert on the Supreme Court to secure rulings favorable to him? It bears watching. After all, Obama's own Democratic Party is leading a campaign to end filibuster privileges in the Senate, squashing democratic debate and ramming policy down the collective throats of the American people. Stifling opposition is the order of the day. 

Obama has signaled his disdain for the constitutional separation of powers. We don't know what he may try next, but we do know that he has vowed never to quit.
on "Supreme Arrogance"