Justified or not, the Supreme Court has a kind of sacred status in American life. For whatever reason, Presidents can safely run against Congress, and vice versa, but I think there is an inherent popular aversion to assaults on the court itself. Perhaps it has to do with an instinctive belief that life needs umpires, even ones who blow calls now and then.
Ironies abound. One of the great partisans of the early republic, John Marshall, created an ethos around the court that has largely protected it (even from itself) from successful partisan attack. Even when it makes bad law (Bush v. Gore), it has the last word. Even when it makes decisions that enrage vast swaths of politically, culturally and religiously motivated citizens (Roe v. Wade), it basically has the last word. (If you disagree with this example, ask yourself how successful pro-lifers have been in amending the Constitution over the past 40 years.) It has had the grimmest of hours (Dred Scott v. Sandford) and the finest (Brown v. Board of Education).
The court is, of course, a political institution. In no way is it a clinically impartial tribunal, for virtually every decision requires an application of values and an assessment in light of experience. “Activist judges” tend to be judges who make decisions with which you disagree.
Winston Churchill once said “Democracy is an awful way to run a country, but it’s the best system we have.” The same thing applies to SCOTUS.
The Founding Fathers believed that government was a necessary evil. They feared absolute monarchy, but they also feared the mob. They intentionally created a system of limited government, then they split the government into three co-equal branches to weaken it still further.
We’re talking about guys like Thomas Jefferson and John Madison – some of the smartest political philosophers that ever lived.
Obama once taught a course in constitutional law, but they wrote the damn thing. I’m gonna trust the system they created.
Drudge asks an interesting headline question. Did Obama get a leak about the SCOTUS deliberations on Friday? In fact, when I read that Obama blasted the possibility the court might strike the law down my very first thought was “Did he get a leak?” It’s entirely possible, maybe even probable. Like her or not, Kagan is, in essence, an Obama embed on the court. It’s not hard to imagine one of her clerks mumbling something the White House’s way.
If true, Justice Kagan is apt to find relations with her judicial fellows somewhat less cordial. She’ll still have life-tenure though.