Tuesday, April 03, 2012


It won't surprise you that I agree with Greg Sargent on the mildness of President Obama's supposedly "unsettling" and "thug"-like attack on the Supreme Court. I'm just trying to imagine how Obama's critics would have reacted if he'd said what a certain presidential candidate said in February 1980:

Ronald Reagan ... campaigning in Birmingham, Ala., Thursday, blasted the court's most recent abortion ruling as "an abuse of power as bad as the transgression of Watergate and the bribery on Capitol Hill." ...

Equating the justices to felons? Anyone feeling unsettled?

And I'm wondering how long it would have been before impeachment articles were drafted if Eric Holder ever delivered a speech like the one described in this article from the first year of Reagan's presidency:

Attorney General William French Smith accused the federal courts of "constitutionally dubious and unwise intrusions upon the legislative domain," and vowed to oppose such "subjective judicial policymaking."

He outlined the [Reagan] administration's plan for urging greater judicial restraint in areas including abortion rights, desegregation, the constitutional rights of aliens and prisoners, and environmental protection....

Smith said the department was working "to identify those key areas in which the courts might be convinced to desist from actual policymaking," so that "errors of the past might be corrected" and "past trends might at least be halted." ...

Smith criticized the federal courts particularly for:

* Assuming "greater power of review of government action" concerning environmental protection and other issues, by deciding cases that they could avoid altogether under judicial doctrines such as "standing, ripeness, mootness, and presence of a political question" ...

"Convinced to desist"? Sounds thuggish to me!

Oh, and then there was this, from 1982:

Atty. Gen. William French Smith declared yesterday that a bill sharply limiting the power of federal courts to order school busing is constitutional....

Smith also said he would defend the constitutionality of a bill denying the high court authority to rule on state regulation of voluntary prayer in public schools and buildings....

You think today's fainting-couch crowd could handle that? You think their heads would explode if the Obama administration started talking about court-stripping? The Republicans would just bypass impeachment and go straight to a military coup.

And I say that even though court-stripping is frequently proposed by right-wingers, most recently by presidential candidates Michele Bachmann and Newt Gingrich, and even though one of the principal proponents of court-stripping in the Reagan era was a young government lawyer named John Roberts, now the chief justice of the Supreme Court:

Over two decades ago, a young government lawyer named John Roberts tried -- and failed -- to convince the Reagan Justice Department to endorse a number of radical legislative proposals that would strip the federal courts of jurisdiction to hear cases concerning such issues as school prayer, school busing, and abortion.

Yes, the Reagan administration refrained from endorsing such bills. But it wanted to make sure everyone knew that it would declare them constitutional if someone else put them forward.

Nope, nothing thuggish about that kind of shot across the federal courts' bow.

(X-posted at Balloon Juice.)


BH said...

I might add that for me, it's pretty funny to see Judge Smith of the 5th Circuit getting all huffy & demanding subservient briefs from the AG. Even THIS Supreme Court finds itself frequently having to overturn 5th Circuit decisions (especially in death penalty cases), sometimes more than once in the same case - a sure sign of obduracy in the lower court. In the 50's & 60's, this court (which then had jurisdiction over the whole Deep South and Texas) was known as the "Stellar 5th" because of its courage in desegregation cases; its bench populated now mostly by oil-company & insurance-defense lawyers appointed by one Bush or another, it would be more aptly known as the "Confederate 5th". Smith's pompous hypersensitivity to extraneous matters like the President's speech would be better replaced by attention to legal precedent and the matters placed before him for adjudication.

Erik A. Prince said...

I'm continually amazed at the deification of Reagan. And just like anyone hoisted atop a pedestal that high, the truth about them becomes obscured by their myth. As many have pointed out, the real Reagan (as opposed to the mythic Reagan) would be denounced by conservatives as loudly as Obama has been. Of course the various insults heaped on Obama are just plain hilarious themselves when you consider how truly moderate he is on most issues.

Reagan is no more the epitome of 21st century conservatism than Obama is of modern Liberalism. Wouldn't it be refreshing if people debated reality rather than caricatures?