Shock & Awe

Conservatives are not accustomed to being on the defensive. They have long experience with attacking the evils of the left and the abuses of activist judges. They love to assail "tax-and-spend liberals" without ever discussing who should be taxed or what government money is actually spent on. They expect their progressive opponents to be wimpy and apologetic. 

So imagine the shock when President Barack Obama decided last week to speak plainly about what a Supreme Court decision throwing out the health-care law would mean, and then landed straight shots against the Mitt Romney-supported Paul Ryan budget as a "Trojan Horse," "an attempt to impose a radical vision on our country," and "thinly veiled social Darwinism."

Obama specifically listed the programs the Ryan-Romney budget would cut back, including student loans, medical and scientific research grants, Head Start, feeding programs for the poor, and possibly even the weather service. 

Romney pronounced himself appalled, accusing Obama of having "railed against arguments no one is making" and "criticized policies no one is proposing." Yet Romney could neither defend the cuts nor deny the president's list of particulars, based as they were on reasonable assumptions. When it came to the Ryan budget, Romney wanted to fuzz things up. But, as Obama likes to point out, math is math.

And when Obama went after the right's willingness to use the power of the Supreme Court for ideological purposes, conservatives were aghast -- and never mind that conservatives have been castigating activist judges since at least the 1968 presidential campaign. 

Thus did a headline on a National Review article by John Fund read: "Obama makes Berkeley liberals look like statesmen." My, my. Writing in the Wall Street Journal, Daniel Henninger argued that it appeared to be "unprecedented" for a U.S. president to have "attacked the Supreme Court before it handed down its decision." 

Perhaps conservative pundits couldn't stand the fact that Obama called them out explicitly. "I'd just remind conservative commentators," he said, "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." Yes, it is.

Now it's true that after Obama spoke, White House Press Secretary Jay Carney placed some limits on the president's claim that knocking down the Affordable Care Act would be "an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress." Carney explained that Obama was "referring to the fact that it would be unprecedented in the modern era of the Supreme Court, since the New Deal era, for the Supreme Court to overturn legislation" on a "matter of national economic importance."

And that is precisely the point. What's lost in our discussions of judicial activism is that in the period from the Gilded Age after the Civil War to the middle of the New Deal, it was conservative Supreme Court majorities that nullified progressive laws aimed at regulating the economy and expanding the rights of workers and consumers. The threat now is a return to pre-New Deal conservative judicial activism. 

In fact, Obama's statements are moderate compared with those of Franklin D. Roosevelt, who unsuccessfully sought to add members to the court after it had voided one New Deal law after another. 

The Constitution, Roosevelt insisted, is "a layman's document, not a lawyer's contract." Its ambiguities had created "an unending struggle between those who would preserve this original broad concept of the Constitution" and those who "cry 'unconstitutional' at every effort to better the condition of our people."

The United States, FDR insisted, could not afford "to sacrifice each generation in turn while the law catches up with life." He spoke with a sense of urgency in the midst of the Great Depression. "The millions who are in want," he said, "will not stand by silently forever while the things to satisfy their needs are within easy reach."

FDR lost the court-packing fight but won the larger battle over the right of the democratic branches of government to legislate on behalf of the common good.

Progressives would be wildly irresponsible if they sat by quietly while a conservative Supreme Court majority undid eighty years of jurisprudence. Roosevelt wasn't a wimp, and Obama has decided that he won't be one, either. Conservatives are unhappy because they prefer passive, intimidated liberals to the fighting kind. 

(c) 2012, Washington Post Writers Group

Related: Tyranny? by the Editors