by Unknown | 5/31/2009 05:10:00 PM
Below the fold, my latest History News Service op-ed, currently published at HNN and perhaps elsewhere soon.

Sonia Sotomayor is too liberal to serve on the Supreme Court -- so, at least, say many conservative critics of President Barack Obama's first high court nominee. It's odd for them to protest Sotomayor's left-wing views, though, when the current Supreme Court is far more conservative than are the majority of voters.

Yet a Court that differs from public opinion is nothing new in U.S. history; in fact, disagreements between the Court and our elected officials are a natural and important part of our constitutional process. What's unusual is that conservatives are complaining about the Court at the same time they're benefiting from its rightward slant.

The Founders wanted the Supreme Court to be independent from the rest of the government. That's why they gave its occupants lifetime appointments. Since justices continue to serve long after the presidents who appointed them are gone, the Court's composition frequently lags behind the country's political mood. Justices who were popular when they took office often become jarringly out of touch before they leave. They're like a bad national hangover: we liked what we drank last night, but we wish it wouldn't stick around for quite so long.

As Obama knows, even winning the presidency doesn't guarantee winning over the Court. Chief Justice John Marshall, who served from 1801 to 1835, belonged to a political party so unpopular it actually disappeared while he was in office. That didn't stop him from making life difficult for the opposing-party presidents who served during his tenure. President Andrew Jackson, a frequent target of Marshall's legal opinions, finally pulled a stunt even Obama wouldn't get away with: he decided to just ignore Marshall altogether. "John Marshall has made his decision," an exasperated Jackson remarked at one point; "now let him enforce it."

The Court's independence means it's not obligated to vote with popular opinion even when doing so would be in the nation's best interest. In 1857, conflict over slavery was tearing the country apart, and only the fragile Compromise of 1850 stood between the United States and bloodshed. Oblivious to the precarious political situation, the Court, led by slave-owning Chief Justice Roger Taney, declared the Compromise unconstitutional -- paving the way for the Civil War.

Even the consummate political skill of Franklin D. Roosevelt wasn't enough to bring the Court to heel. Ignoring Roosevelt's friendly overtures, four right-wing justices -- nicknamed the "Four Horsemen" by liberal commentators -- proved hell-bent on striking down the entire New Deal. A panicked FDR tried to pack the Court in 1937 by adding six new justices -- but Congress rejected his proposal. A constitutional crisis was averted only when the other five justices decided to back Roosevelt's policies.

If disputes between the Court and popular opinion have a long history, so do complaints about liberal judges. Modern-day conservative attacks on the "liberal judiciary" date back to 1953, when Republican Earl Warren surprised everyone by becoming the most liberal Chief Justice in history. Over the next sixteen years, Warren and his fellow justices wrote a series of bold opinions that, among other things, struck down segregation and gave Miranda rights to accused criminals. Many Warren Court members were still around in 1973 to help legalize abortion through Roe v. Wade.

Just like today, conservatives were outraged by what they saw as the Court actively making government more liberal instead of just interpreting the law. At the time, they had a point. But since 1969, Republican presidents have appointed all but two new justices, and most of the newcomers have shifted the Court to the right. The last unabashedly liberal justice, Harry Blackmun, retired over fifteen years ago. Today's Court, led by right-wing ideologues such as Antonin Scalia and Clarence Thomas, is the most conservative since the days of the Four Horsemen.

Yet somehow, conservatives have managed to have their cake and eat it too. Despite the Court's obvious right-wing bent, the right continues to attack the judiciary as too liberal for the country. It's this popular misrepresentation of the current Court that's historically new. Slavery advocates didn't carp about abolitionist judges while Taney was Chief Justice; anti-New Dealers didn't grumble about judicial liberalism when the Four Horsemen were on the bench.

Conservatives are entitled to enjoy the fruits of a right-leaning Supreme Court in the midst of the liberal Obama administration; by lagging behind the nation's leftward turn, the Court is doing exactly what it's designed to do. But it's disingenuous for the right to whine about a liberal judiciary at the same time it benefits from a conservative one. If conservatives want their concerns about liberal judges to be taken seriously, they'll have to wait until a Democratic president or two actually tilts the Court to the left. At least then the right's attacks on the Court will mesh better with reality.




Blogger Ahistoricality on 5/31/2009 8:58 PM:

I'm torn.

I agree that the political theater of confirmation has become toxic, and the delays in the confirmation process at lower levels even more so.

But I also don't think that Presidential authority of appointment is absolute: "advice and consent" implies a consultative and consensus process, not a rubber-stamp.

And the rhetorical slippage you're pointing out is not an accident: it's a strategic decision by the right, similar to that used by Christianist demagogues, to maintain a sense of crisis within the ranks and keep liberals off their guard.


Blogger AndrewMc on 5/31/2009 8:59 PM:

So, you are saying that the right is disingenuous? Hmmmmm.......


Blogger Unknown on 6/01/2009 12:10 PM:

Andrew, I know, right? :)

Ahist, I agree that presidential authority isn't a rubber stamp, and that the Senate should be able to reject a really bad nominee (Alito, anyone?). Nor do I disagree with you that the right's doing this intentionally. I'm bound a bit here by the HNS rules: keep it simple, and don't express overt support for one party or another. I'm actually treading that last line pretty closely, I think.


Anonymous Ralph Brauer on 6/03/2009 11:04 PM:

I wrote a long piece about this on my own blog after having a conversation with my law school son. We both agree that because of the current divisiveness we are in for a period of justices who have not contributed to legal writing or theory and who have rarely ruled on any major divisive issues. In this sense it is unlikely in our times that we will see the likes of a Marshall, Hand, Holmes, Brandeis, Cardozo, Frankfurter, Jackson, Douglas.

Loved him or hate him, Scalia is probably the best mind on the Court at the moment. The reason I like Sotomayor is because of her meticulous opinions, which should make her an interesting foil for Scalia. I tagged her an "evolutionist" for her reliance on prcedent as opposed to Scalia's originalism.


Anonymous Jesse Hemingway on 6/04/2009 11:20 PM:

“Sonia Sotomayor is too liberal to serve on the Supreme Court.” Dennis Kucinich is a moderate liberal ok a straight shooter. George H. Bush and William J, Clinton are both right leaning moderate corporatist. Sonia Sotomayor is a right leaning moderate corporatist just like Barack H. Obama.
It’s startling to watch this episode the liberals and the progressives lose on this nomination this is through the looking glass with out gravity. When the dust settles this country will have moved 5 more degrees to the right and the liberals and progressives won’t even know what hit them. Sonia Sotomayor no bueno very bad choice. LOL,LOl,LOL


Anonymous Jesse Hemingway on 6/05/2009 10:59 AM:

The real make up of the United States government Dennis Kucinich and Bernie Sanders are the far left in our government (LOL,LOL) then an enormous chasm exists to a moderate area of 5 degrees left and right of center that is where the new liberal/progressives dwell and reside. Then the remainders of elected representatives farther down the scale to the right. Of the 525 elected representatives Dennis Kucinich and Bernie Sanders don’t even make up the statically error deviation.

The point I am getting at is forget using the word liberal it has no meaning.


Anonymous Ralph Brauer on 6/05/2009 3:59 PM:

A liberal is someone who believes that one of the chief roles of government is to keep the playing field level. If you no longer believe in that I feel sorry for you and America.

If you do then get involved. Run for office or find someone else and help them run for office. Get involved with one of the many groups doing things whether it is providing food for the homeless or shelter for battered women. If you need a refresher on organizing and advocacy skills attend one of the Camp Wellstone sessions (just Google their web site for places and times--they hold them all over the country at a reasonable cost).

An activist friend of mine has a theory that talk radio and blogs have done a great favor for those in power by channeling anger and frustration into ranting instead of action.