Monday, February 1, 2010

Thanks, Justice Alito

When Justice Samuel Alito took pantomimic exception last week to President Obama’s assertion that the Supreme Court’s ruling in Citizens United v. FEC, it drew a lot of praise from the right wing who said that the president was out of line for criticizing the court. How dare he attack that august institution that is a free and independent branch of the government? How dare the president try to intimidate the men and women of the Court who were doing the right thing by giving corporations free and unfettered access to our electoral process? Except, as E.J. Dionne points out, the conservatives have no problem attacking the Court when it does something they don’t like.

The movement’s legal theorists and politicians have spent more than four decades attacking alleged judicial abuses by liberals, cheering on the presidents who joined them in their assaults. But now, they are terribly offended that Obama has straightforwardly challenged the handiwork of their judicial comrades.

There is ample precedent for Obama’s firm but respectful rebuke of the court. I know of no one on the right who protested when President Ronald Reagan, in a 1983 article in the Human Life Review, took on the Supreme Court’s Roe v. Wade decision of 10 years earlier.

“Make no mistake, abortion-on-demand is not a right granted by the Constitution,” Reagan wrote. “No serious scholar, including one disposed to agree with the court’s result, has argued that the framers of the Constitution intended to create such a right. . . . Nowhere do the plain words of the Constitution even hint at a ‘right’ so sweeping as to permit abortion up to the time the child is ready to be born.” Reagan cited Justice Byron White’s description of Roe as an act of “raw judicial power,” which is actually an excellent description of the court’s ruling on corporate money in Citizens United v. Federal Election Commission.

Reagan had every right to say what he did. But why do conservatives deny the same right to Obama?

I trust the last question is rhetorical because the answer is obvious: conservative judicial activism is good; liberal judicial activism is bad. You can be sure that if Bush v. Gore had gone the other way, the right wing would have spent the last nine years demonstrating and denouncing the Gore presidency as stolen and illegitimate, and there are still those who think that the Loving v. Virginia case — the one that overturned the ban on interracial marriage — was judicial overreaching.

But, as Mr. Dionne says, at least Justice Alito did us a favor by basically tipping his hand and letting us know that the Supremes are not so much above it all as much as they would like us to believe.

I disagree with Alito on the law and the policy, but I have no problem with his personal expression of displeasure.

On the contrary, I salute him because his candid response brought home to the country how high the stakes are in the battle over the conservative activism of Chief Justice John Roberts’s court.

Which means they can be counted on to do the right’s thing.