Apparently, arrogance is not the only thing that Barack Obama and Newt Gingrich have in common. Turns out, the two men share an extreme contempt for judicial independence that is far outside the mainstream of American legal thought.
In our constitutional system, the federal judiciary is one of three co-equal branches of government. Unlike many state judges, federal judges are appointed by the president, confirmed by the Senate and serve for life.
Our founding fathers established life tenure for federal judges in order to insulate them from the political whims of the public and the dictates of the president who appointed them. The founders believed that life tenure would create an independent judiciary guided by the rule of law rather than party politics or political payback.
Of course, an independent judiciary and a system of checks and balances can prove politically inconvenient for control freaks like Gingrich and Obama.
And when courts issue rulings with which these men disagree, they lash out.
Gingrich, for example, has proposed that U.S. marshals drag federal judges before Congress to explain their decisions. He has referred to judges as a “pox” on the nation. And he has called for the elimination of certain courts and the impeachment of judges who flout the popular will.
For his part, Obama has focused his ire on the nation’s highest court. In 2010, the president used his State of the Union message to berate the justices of the U.S. Supreme Court, most of whom sat silently and respectfully just 20 feet from the podium.
Their crime? Issuing a decision that displeased His Majesty.
Just last week, Obama again attacked the Supreme Court — this time, for daring to consider whether Congress overstepped its bounds in enacting Obamacare. The president claimed that overturning the law would constitute “unprecedented” “judicial activism.”
He is wrong.
Deciding whether democratically enacted statutes pass constitutional muster is what we pay federal judges to do.
This is the essence of “judicial review,” and it is in no way unprecedented. (Since the beginning of the republic, the Supreme Court has invalidated numerous federal laws, or parts of them — and has done so even since Obama took office.)
The uncontroversial concept of “judicial review” is not the same as “judicial activism.” Judicial activism refers to judicial rulings that are inappropriately based on politics rather than law, or rulings that create out of whole cloth new rights not mentioned in the Constitution.
In the case at hand the justices are simply doing their jobs.
Is it possible that Obama, a former (part-time) law teacher, simply misunderstands the role of the federal courts in our constitutional system?
The president may be a lot of things, but he is not a fool.
Obama knows full well that the federal courts are empowered to overturn laws that conflict with the U.S. Constitution. But he will need someone to blame if the court deep-sixes his legislative pride-and-joy.
And so, by deliberately conflating the concepts of judicial review and judicial activism, Obama seeks to confuse the public and undermine the institutional legitimacy of the court for his own political purposes.
Thankfully, our Constitution establishes a divided federal government in order to prevent power from accumulating in the hands of ideological bullies such as Gingrich or Obama.
The recent attacks on the federal courts are a useful reminder of the wisdom of our nation’s founders.