Conservative media are on the attack after President Obama responded to a question about the Supreme Court's consideration of the Affordable Care Act by pointing out that conservatives criticize "unelected" judges who engage in "judicial activism" to "overturn a duly constituted and passed law." But Obama is right: for years conservatives have railed against "unelected" judges who overturn laws passed by the people's representatives.
Obama: Conservatives Criticize "Unelected" Judges Who Engage In Judicial Activism
Obama Reminds Conservatives That They Often Attack "Unelected" Judges Who "Overturn A Duly Constituted And Passed Law." From President Obama's April 2 press conference:
OBAMA: Ultimately I'm confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress. And I'd just remind conservative commentators that for years what we've heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint -- that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example. And I'm pretty confident that this Court will recognize that and not take that step. [WhiteHouse.gov, 4/2/12]
Conservative Media: Obama's Criticism Of The Court Was "Unnerving"
NY Post's Podhoretz: Obama's Reference To An "Unelected Group Of People" Was "Unnerving." From John Podhoretz's April 2 New York Post column headlined "A Supremely brazen attack":
Yesterday, Barack Obama made the tautological assertion that "I am confident the bill will be upheld because it should be upheld," which almost seemed to threaten the court if it disagrees with his contention.
Referring to the nine justices unnervingly as an "unelected group of people," he then said he was certain "the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress." [New York Post, 4/2/12]
Tucker Carlson Responds To "Unelected Group Of People": "This Is What The Supreme Court Does." From the April 2 edition of Fox News' Special Report with Bret Baier:
BRET BAIER (host): We had some Democrats out there saying he is already running against Congress. And now he may be running against the Supreme Court. I mean, the sentence, "an unelected group of people would somehow overturn a duly constituted passed law."
TUCKER CARLSON: Well, this is what the Supreme Court does. It overturns -- of course, I mean that's part of its charter is to overturn laws that don't comport with the Constitution. And by the way, his claim that this is somehow, you know, a tangible argument, you know, the court shouldn't approach this as abstract argument, abstract arguments are what they take up. [Fox News, Special Report with Bret Baier, 4/2/12]
Fox Nation: "Obama Takes Aim At Supreme Court, Calls Them 'Unelected Group Of People.' " From an April 3 post on Fox Nation:
[Fox Nation, 4/3/12]
But Conservatives Have Repeatedly Criticized "Unelected" Judges Who Rule In Ways They Dislike
Republican Presidential Candidates Have Criticized "Unelected Judges."
- Romney Criticized Judges Who Struck Down California Same-Sex Marriage Ban As "Unelected Judges" Who "Cast Aside The Will Of The People." From the Associated Press:
Republican presidential candidate Mitt Romney pounced after a federal appeals court ruled that a voter-approved ban on gay marriage in California violated the Constitution.
"Today, unelected judges cast aside the will of the people of California who voted to protect traditional marriage," he said in a written statement. "I believe marriage is between a man and a woman and, as president, I will protect traditional marriage and appoint judges who interpret the Constitution as it is written and not according to their own politics and prejudices." [Associated Press, 2/7/12]
- Santorum: "Unelected Judges" Should Not Impose Their Views On Gay Marriage, "The Great Moral Issues Of Our Time," On Others. From the October 29, 2006, edition of Fox Broadcasting Co.'s Fox News Sunday:
SANTORUM: Yes, my opponent and I are very different on this issue. He said he would fight against any state or federal constitutional amendment that would secure the right of the people to define what marriage is. He would allow the courts to impose a redefinition of marriage.
I don't believe in that. I believe on the great moral issues of our time, the people have a right to speak and say what their collective morality is, the kind of country that they want to live in, and a few unelected, in some cases, or even elected, judges should not impose that. He would go along with the unelected judges. He supports civil unions. He supports, in a sense, gay marriage without the word marriage. [Fox Broadcasting Co., Fox News Sunday, 10/29/06, via Nexis]
Other Republican Officials Have Criticized "Unelected Judges."
- Sen. Cornyn: "Unelected Judges ... Have Occasionally Used This Power Conferred Upon Them In The Constitution To Impose Their Own Views." From a 2009 Senate floor speech by Senate Judiciary Committee member John Cornyn (R-TX) on the nomination of Supreme Court Justice Sonia Sotomayor:
CORNYN: Supreme Court Justices have always had tremendous power within our constitutional system of separated and enumerated powers. In recent decades, growing concern has arisen over judicial activism on the Court, which has the necessary consequence of taking power away from the elected representatives, and thus the people themselves, and conferring it to those with life tenure, unelected judges who have occasionally used this power conferred upon them in the Constitution to impose their own views and their own agenda on the American people and substituting that for the views of their elected representatives. [Senate floor speech, 7/24/09]
- Sen. Grassley: Some "Unelected Judges" Long For "Power That, Under Our Constitution, Self-Governing People Exercise Themselves." From a 2012 Senate floor speech by Sen. Chuck Grassley (R-IA), the ranking member of the Senate Judiciary Committee:
GRASSLEY: We need to preserve, protect, and defend the Constitution of the United States. We need to preserve, protect, and defend the rights of American citizens. Justice Ginsburg and others who have a judicial longing for other constitutions that protect different rights and give unelected judges power that, under our Constitution, self-governing people exercise themselves -- I tell those judges, including Justice Ginsburg, that is the wrong approach. [Senate floor speech, 3/29/12]
Conservative Media And Activists Attack "Unelected Judges."
- Fred Barnes Criticized "Four Unelected Judges" Who Overturned California's Ban On Same-Sex Marriage. From the May 16, 2008, edition of Fox News' Special Report with Brit Hume:
BARNES: And the issue for John McCain, for instance, is judicial activism. This is a case where 4.6 million Californians had voted to say marriage had to be between a man and woman a few years ago, and then you get four unelected judges who say there is a fundamental right in the California constitution to get married and form a family.
Nobody had ever seen that right there before, but this is what drives conservatives -- and not just conservatives --crazy: judges dreaming up new rights.
And probably they are unnecessary in this case, because California, the legislature, had passed a gay marriage Bill that had been vetoed twice by Governor Schwarzenegger. The next governor will probably be a Democrat that will sign it.
And, besides, I think this puts the gay rights movement, which has been winning the argument, basically, if you believe the polls, and I do, in the worst possible light, that it takes four unelected judges to impose this gay marriage on an unwilling public. [Fox News, Special Report with Brit Hume, 5/16/08, via Nexis]
- Focus On The Family Founder James Dobson Railed Against "Unelected Judge" Who Refused To Let The Ten Commandments Be Displayed In The Alabama Supreme Court. From the March 4, 2004, edition of Fox News' now-defunct Hannity & Colmes:
DOBSON: Well, it all depends on the way you look at that. If you talk to Judge Moore, he was attempting to carry out his oath of office. That was the rule of law.
And here again you have an unelected judge who came in there and decreed that you could not acknowledge God in Alabama.
Judge Moore ran on a platform saying he was going to put that monument where it was, and he told the American -- I mean, the people of Alabama that. And they elected him by a 70 percent majority. That is the rule of law. [Fox News, Hannity & Colmes, 3/4/04, via Nexis]
- Laura Ingraham: "We Don't Want To Be Micromanaged By Some Unelected Judge." From the September 15, 2003, edition of Fox News' Hannity & Colmes:
INGRAHAM: We believe in our God and we like to have our freedom. We don't want to be micromanaged by some unelected judge or some unelected bureaucrat on the international or national level. [Fox News, Hannity & Colmes, 9/15/03, via Nexis]
- Social Conservative Advocate Gary Bauer: "Unelected Judges ... Are Trying To Force [Same-Sex Marriage] On The American People." From the October 10, 2000, edition of Fox News' The O'Reilly Factor:
BAUER: Well, Bill, there's a gigantic battle going on all over the country, including in Vermont, on the definition of marriage. This country has been built, broadly speaking, on a Judeo-Christian value system. In fact, all of western civilization has been. And that value system has always said that marriage is between a man and a woman.
In this country, every time the people have had a chance to address this issue, they vote for marriage being a man and a woman. It's only unelected judges, the liberal judges you've railed about, that are trying to force this on the American people. And a conservative Republican ticket ought to be bold enough to say look, we're in favor of traditional marriage. [Fox News, The O'Reilly Factor, 10/10/00, via Nexis]
Conservatives Have Also Repeatedly Criticized "Judicial Activism"
Rep. King: "Judicial Activism" Has "Begun To Break Down This Civilization And This Culture." From a 2012 House floor speech by Rep. Steve King (R-IA):
KING: 1965, no, excuse me; I'll go back to 1963, Mr. Speaker. There was a case called Murray v. Curlett, and I don't know that that is very well universally recognized, but that was the case that took prayer out of the public schools. There was an argument made before the activist court in 1963 that there was a separation of church and state, and that that separation of church and state was firm enough and solid enough that we could not pray in our public schools because that advocated for a religion.
And so I'll read to you the language that surely had to be reviewed by the Supreme Court justices. It says, Congress shall make -- this is the First Amendment, Mr. Speaker -- Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. And it goes on, of course, freedom of speech, the press, and the right of the people to assemble.
It says Congress shall make no law. There was no law that came from Congress that established a religion. The law that Congress made just didn't exist with religious freedom because Congress understood that the First Amendment means what it says. The textual reading and the original understanding said Congress shall not establish a religion. We're not going to be like Sweden, establishing Lutheranism as a state religion. We're going to have freedom of religion, but it shall not establish a religion. Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.
But if you believe in judge-made law, the Supreme Court, by that decision in 1963, Murray v. Curlett, outlawed prayer in the public schools by a court decision. I think it's in direct violation of the First Amendment of the Constitution. If we're going to respect judge-made law and stop praying in our public schools, that was the beginning of the judicial activism that's begun to break down this civilization and this culture. I think those decisions needed to be made at the local school level, not at the Supreme Court level. [House of Representatives floor speech, 3/1/12, emphasis added]
Sen. McCain: "Judicial Activism Demonstrates A Lack Of Respect For The Popular Will, And That Is At Fundamental Odds With Our Republican System Of Government." From an 2009 Senate speech statement by Sen. John McCain (R-AZ):
McCAIN: Activist judges -- regardless of whether it is liberal or conservative activism -- assume the judiciary is a superlegislature of moral philosophers, entitled to support Congress's policy choices whenever they choose. I believe this judicial activism is wrong and is contrary to the Constitution.
Our Constitution is very clear in its delineation and dispersement of power. It solely tasks the Congress with creating law, not the courts. I have a long history of opposing activist judges. Judicial activism demonstrates a lack of respect for the popular will, and that is at fundamental odds with our republican system of government. I believe a judge should seek to uphold all acts of Congress and State legislatures, unless they clearly violate a specific section of the Constitution, and refrain from interpreting the law in a manner which creates new law. That is a fundamentally conservative position I have held throughout my career. [Senate floor speech, 10/21/09]
Charles Krauthammer: Judicial Activism Is "Generally The Practice Of The Left, For Example On Abortion, Overturning The Laws In 50 States With One Act Of Will On The Part Of The Supreme Court." From the March 27 edition of Fox News' Special Report with Bret Baier:
SHANNON BREAM (guest host): Charles, early on, folks who were in the courtroom who do not like the law seemed very encouraged by Justice Kennedy's remarks. But, as Liz said, he did have other remarks later on that suggested he has not actually made up his mind.
KRAUTHAMMER: The other outside chance is that the chief justice -- I think he as a conservative is instinctively inclined judicial activism, which is generally the practice of the left, for example on abortion, overturning the laws in 50 states with one act of will on the part of the Supreme Court. There is some hesitation on his part I think for the court to act particularly if it's a one vote majority to overturn a law as broad, sweeping, and important as Obamacare, particularly since was debated for almost a year and a half and in the end passed the Congress and got the signature of the president. So I think he might be, and there is an outside chance of him being a defector of this simply on the grounds of not appearing to be a judicial activist and in some way I think eroding the legitimacy of the court has an arbiter that leaves legislation generally alone. [Fox News, Special Report with Bret Baier, 3/27/12, via Nexis]
Fox's Kimberly Guilfoyle: Overturning Of California's Same-Sex Marriage Ban Was An Act Of "Judicial Activism" That "Stripp[ed] The Will Of The Voters, Of The People Of The State Of California." From the February 7 edition of Fox News' The O'Reilly Factor:
BILL O'REILLY (host): "Is It Legal Segment" tonight, back in 2008 Californians voted on whether or not to approve gay marriage. The folks decided no, that marriage should stay between a man and a woman in the Golden State. Now, that started inevitable court challenges and today the very liberal Ninth Circuit of Appeals nullified the gay marriage vote in a two to one decision.
Here now to explain it all, attorneys and Fox News analysts Kimberly Guilfoyle and Lis Wiehl. California voters basically just, you know, two judges basically said you know what; don't really care about you. What you want really doesn't matter because we say this is unconstitutional to deny gays the right to marry.
LIS WIEHL, FOX NEWS ANALYST: That is what they said. They said voters don't count or matter if voters they take away a benefit that was bestowed on a group of people -- gay marriage here is the case -- without a legitimate reason to further a state interest. These two judges could find no legitimate reason that people shouldn't be allowed --
O'REILLY: Do you really think they looked to find a legitimate reason? Because I don't.
All right. Look, the legitimate reason is that the majority of Californians, Guilfoyle --
KIMBERLY GUILFOYLE, FOX NEWS ANALYST: Yes.
O'REILLY: -- and you used to live in that state, of course -- felt that society is stronger by having the standard of marriage between a man and a woman; that the family unit is stronger. That basically the benefit ripples across when you hold up man, woman because of nature, because of a million different reasons, all right? Everybody is different on the issue. The judges said, you know, that's no reason. You know.
GUILFOYLE: You had 2-1 decision. Of course the two judges that ruled in favor of both were appointed by Democratic president. President Carter and then the one dissenting was the one appointed by Bush.
But now this is going to go -- it's going to be appealed. This will go en banc to the entire circuit court.
O'REILLY: They will rule the same way in the Ninth Circuit.
GUILFOYLE: They will rule the same way --
O'REILLY: And then it will go to --
GUILFOYLE: it will go to Supreme Court.
O'REILLY: But isn't this judicial activism?
GUILFOYLE: Well, it is. I mean many people view and correctly I think, it's stripping the will of the voters of the people of the state of California. [Fox News, The O'Reilly Factor, 2/7/12, via Nexis]