Obama = Taliban + Polio, And Other Lessons From Glenn Reynolds's Supreme Court Op-Ed

06/26/2012

2012 Election

Scott Lemieux over at Lawyers, Guns & Money goes apeshit on Glenn Reynolds for this exquisite piece of analogical fallacy:

For the past couple of months, Democrats and their pundit allies — apparently expecting to lose on ObamaCare in the Supreme Court — have been engaged in a campaign to delegitimize the high court in the eyes of the public. In a related development, Taliban spokesmen threaten to end polio vaccinations in areas they control unless the United States stops drone strikes.

How are the actions related? They’re self-destructive and futile — borne more of frustration than of any deep thinking.

So there you go. Obama criticizing the Supreme Court = Tablian + polio. But wait! Reynolds has an important point to make about what happens if liberals keep up this unprecedented* assault on the Judiciary.

(*Precedents changed to no longer include conservatives whining about liberal judicial activism.)

Reynolds:

Normally, a political party attacks the Supreme Court when it’s a pillar of the other party's positions. Thus, President Franklin Roosevelt, having won Democratic control of the White House and Congress, attacked the court as the last redoubt of laissez-faire capitalism at a time when, he said, events had proved that laissez-faire capitalism didn’t work.

Blowback from his failed court-packing scheme aside, that worked pretty well for FDR. In fact, from his time to the present, the Supreme Court has been a bulwark of the Democrats' policy platform. Unpopular decisions — ranging from Wickard v. Filburn, to Miranda v. Arizona, to Roe v. Wade — have all been supported by reference to the court’s prestige and legitimacy.

Lemieux points out that Roe v. Wade, at the very least, was and remains popular, and also that the last case Reynolds is able to cite as the "pillar" of liberal positions is 40 years old. Does anybody alive and sentient today feel that the Supreme Court is too liberal? Does anybody feel that the Court is liberal at all? Does anybody feel, in the wake of Citizens United and Bush v. Gore and all the gutting of the Fourth Amendment—to pick only examples from the past twelve years—that the Court is even moderate? Is this because of <sodomy>Lawrence v. Kansas</sodomy>?

Reynolds goes on to cite the many ways in which Republican presidents have obsequiously acquiesced to the Court's opinion, including Nixon's handing over his tapes to Congress—what a sport!—and this gem:

Most recently, the Bush administration meekly complied with Supreme Court rulings limiting its powers in the War on Terror despite its belief that the rulings were wrong and an unconstitutional invasion of executive power.

Sad trombone! Can you believe the Court tried to limit Bush's executive power? He barely got to expand it to unprecedented degrees.

Yet Supreme Court decisions are the source of much of the liberal legal infrastructure for today's society. So a weakened court might well mean major losses for liberalism in areas like abortion, birth control, criminal procedure and more.

And if, as seems increasingly possible, the next president is a Republican with a Republican Congress, the new administration will be in a stronger position to make sweeping changes without worrying so much about the courts. Might we revisit efforts to ban partial-birth abortion? Limit the rights of criminal defendants? Pass a new, tougher Patriot Act?

Again, this only makes sense if you define liberalism as anything to the left of Fox News.

Reynolds's argument is dumb in the big picture as well, as it's based on the idea that the Court's legitimacy is founded upon its non-partisan role in checks and balances, and that Democrats are bashing the former to weaken the latter. But the Supreme Court's approval has been in decline for some time now, and it has nothing to do with one party or the other questoning their rulings, but the degree to which the ideology of the judges is starting to show through.

| The Only Reason We Like The Supreme Court Is We Don't Know Anything About It |

Anton Scalia's anti-immigration projectile vomiting of a dissent yesterday is a perfect example of the type of partisanship that either a) hasn't existed before on the Court, or, in PoliticOlogy's reading of the situation, b) hasn't ever been this transparent. Justices like Scalia, Alito and Thomas are either changing that or calling attention to it by handing down decisions that seem predicated on ideology rather than legal precedent; hell, Scalia just reversed his own long-held opinion on Wickard v. Filburn—one of the cases Reynolds cited as a "pillar" of judicial liberalism—just in time to overturn the PPACA, because he just doesn't seem to like the idea of federal health care reform. When precedent is changed in service of the ruling and not the other way around, legitimacy seems out the window, no?

Again, your call as to whether the Court has become more ideological, or whether we simply are wising up to the fact. But one way or another, opinion is changing on SCOTUS' legitimacy. The Supreme Court doesn't need liberals—or whatever Glenn Reynolds thinks liberals are—to lose its level of legitimacy. It's doing that all by itself.

Scott Lemieux's whole piece deserves a full read.

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