Lies, Damned Lies, and the Supreme Court

The silly brouhahas that marked the weeks leading up to last year’s election have mostly been forgotten, but one might be on the verge of a comeback. Remember when the conservative punditry was screaming that Obama wants to redistribute wealth using the court system? Well, that old meme might be back, if Roger Kimball at Pajamas Media has anything to say about it.
In the course of concluding that Obama is leading a “socialist assault on private property and individual liberty,” Kimball seriously and (one can only assume) deliberately mischaracterizes a 2001 interview that Obama gave on the subject of the courts.
I’m not going to go through every woeful mis-interpretation of what Obama said, but here’s the big one. Obama said the Warren Court wasn’t “that radical” because “it didn’t break free from the essential constraints that were placed by the Founding Fathers and the Constitution.” Of course, Kimball thinks that this means Obama wants to break free of those constraints, but any literate and honest person can see that that’s not the case. Please, read the transcript yourself. Obama was defending the Warren Court’s jurisprudence, not arguing that it didn’t go far enough. He wasn’t disparaging the fact that the Constitution is a “charter of negative liberties,” he was describing it. He didn’t say that the “tragedy” of the civil rights movement was its focus on negative liberties, but rather its focus on court-led change. Its focus on the courts led it to “lose track” of the ways in which you actually effect “redistributive change,” and to the (limited) extent to which the civil rights movement wanted to see court-led redistribution (see San Antonio v. Rodriguez), Obama thinks it was in error. If Kimball just looked a little farther down the transcript, he would see that Obama believes the Court isn’t “structured” to bring about economic justice. In other words, the Constitution doesn’t allow for it, and the Court’s role in society doesn’t either.
Aside from these mis-attributions, I wanted to point out one more thing from Kimball’s column, a confused attack that is very common in conservative commentary on the courts. Kimball says, “Wouldn’t you rather have [a justice] endeavor to discharge the responsibilities he signed up for, i.e., upholding the law?”
This canard is so deeply rooted in conservative circles that I am probably banging my head against the wall, but here goes, and please pardon the pedantry. The Supreme Court’s job is to review laws. That practice is called judicial review, and we have had it in this country since at least 1803. Most every democracy in the world has it too. It means that the courts, when asked, look at laws passed by Congress and state legislatures to make sure that they are constitutional. If Congress passed the Alien and Sedition Acts again, and a challenge came before the Supreme Court, it would (we hope) strike them down as unconstitutional under the First Amendment. Now, you can say that Chief Justice John Marshall created judicial review ought of whole cloth, that the Framers never intended it in the first place (I don’t think that’s right, though). You can say that we ought to pass a constitutional amendment getting rid of judicial review, which I don’t think is advisable, but that view is not fundamentally incoherent either. And you can say that the Supreme Court ought to hold different laws unconstitutional than it is currently in the practice of doing, which seems to be what most people mean when they criticize the Supreme Court.