Barack Obama wandered away from the teleprompters last Wednesday night on Air Force One, and engaged in "an impromptu conversation with reporters" about liberal activism on the Supreme Court.

“It used to be that the notion of an activist judge was somebody who ignored the will of Congress, ignored democratic processes, and tried to impose judicial solutions on problems instead of letting the process work itself through politically,” Mr. Obama said.

“And in the ’60s and ’70s, the feeling was — is that liberals were guilty of that kind of approach. What you’re now seeing, I think, is a conservative jurisprudence that oftentimes makes the same error.”

Mr. Obama’s comments, which came as he prepares to make a Supreme Court nomination, amounted to the most sympathetic statement by a sitting Democratic president about the conservative view that the Warren and Burger courts — which expanded criminal defendant rights, required busing to desegregate schools and declared a right to abortion — were dominated by “liberal judicial activists” whose rulings were dubious.

Glenn Greenwald provided a little context around Obama’s impromptu right-wing rant.

Given that the defining rulings of those decades have long formed the bedrock of the progressive understanding of the Constitution and the judiciary, that the dominant Justices of that era (Brennan, Marshall, Douglas, Black) are the iconic liberal judges of the 20th century, and that those decades produced the most vital safeguards for core Constitutional guarantees and critical limits on executive power, Obama — as I said yesterday — should at least specify which decisions he finds "erroneous" and illegitimate. But the imperial decree has been issued and that’s apparently all you need to know:

The White House declined to identify rulings that Mr. Obama believes relied on judicial activism.

The absolute dumbest political platitude in the vast canon of right-wing idiocies has long been the premise that courts act improperly — are engaged in "judicial activism" — whenever they declare a democratically enacted law invalid on the ground that it is unconstitutional. That’s one of the central functions of the courts, a linchpin of how our Constitutional Republic operates. We’re not a pure democracy precisely because there are limits on what democratic majorities are permitted to do, and those limits are set forth in the Constitution, which courts have the responsibility to interpret and apply. When judges strike down laws because they violate Constitutional guarantees, that’s not a subversion of our political system; it’s a vindication, a crucial safeguarding of it.

It’s possible that Barack Obama doesn’t really oppose integration and abortion rights, and simply believes that the courts should have waited for legislatures to write Brown v. Board of Education and Roe v. Wade into law, instead of engaging in "judicial activism."

But the framers of the US Constitution were notoriously unwilling to allow basic human rights to be redefined by every succeeding gang of newly-elected politicos, and they consequently embedded the Bill of Rights and the Fourteenth Amendment directly into the Constitution.

So maybe what Mr. Obama means by "letting the process work itself through politically" is that proponents of abortion rights and integrated schools should have summoned a Constitutional Convention, instead of relying on "judicial activism" or transitory Congressional legislation which every succeeding Congress could reverse or re-instate.

But when the over-active Warren Court wrote its unanimous 9-0 opinion in Brown v. Board of Education, for example, no less than 17 states still enforced de jure segregation of schools.

So in order to attain the necessary two-thirds majority of approval by state legislatures required for a Constitutional Convention, black Americans would have had to wait for 34 integrationist legislatures to over-rule the 17 segregationist states…

And that means they would have had to wait for the 51st state to be admitted to the Union, and that means…

They would still be waiting.

Jacob Freeze

Jacob Freeze

I'm a painter and photographer who supplements his meager income by hurling rotten fruit and screaming "Welcome to the Bu!" at the Humvees of hedge-fund managers and their nightmare spawn who get stuck in the ridiculously narrow drive-through at McDonald's in Malibu. They inevitably poop their pants and abandon the vehicle, which I subsequently strip and sell for parts, and that is how I can afford to live in Malibu.

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