He's Cerebral! He's Detached! He's . . . JUSTICE OBAMA!!!

by Pejman Yousefzadeh on February 21, 2010


Taking Jeffrey Rosen’s suggestion that Barack Obama might be a good Supreme Court Justice seriously requires suspending a whole lot of disbelief. I don’t just refer to buying into the notion that the President might appoint himself to the Supreme Court (restrain your guffaws), or accepting the belief that he might support a bid by Hillary Clinton to succeed him in 2012 in exchange for a promise that she will appoint him to the Supreme Court (I told you to restrain your guffaws!). I don’t even refer to buying into the notion that the President is a latter day Louis Brandeis (they both were community organizers, don’tcha know?). I mean that when one peers beneath the surface, Rosen’s argument that the President’s background and temperament would make him ideal for the high Court just cannot be taken seriously.

Rosen notes with glee the “smackdown” the President supposedly delivered in the State of the Union address over the Court’s decision in Citizens United. Is Rosen aware that said smackdown was completely off-base? Are we supposed to take seriously the contention that Barack Obama–having delivered an off-base smackdown–is some kind of ideal counterpoint to the “conservative hothead Scalia”? Justice Scalia may be too “hot-headed” for Rosen’s delicate sensibilities, but seeing as how he wouldn’t have mis-characterized the Citizens United ruling to the degree that the President did, I will take “hotheaded” accuracy over “detached and judicious” inexactitude any day when it comes to choosing my Supreme Court Justices. (Note that Rosen not only never acknowledges that the President’s commentary on Citizens United–both in his State of the Union speech, and in other comments–was entirely inaccurate, he doesn’t make the additional point that it is more than a little shocking that a former Harvard Law Review president, and law school lecturer at the University of Chicago should flub a legal analysis so.)

Come to think of it, the would-be future Justice showed a shaky grasp on Constitutional law and history at other points as well.

We saw earlier that Justice Scalia is a “hothead,” and having dismissed him thus, Rosen next turns his rhetorical panic fire on Chief Justice Roberts. Liberal Justices on the Court disagree with the conservatives on a number of rulings . . . and this division supposedly is the Chief’s fault. Fear not, however, because according to Rosen, “Obama could take on the role of Supreme Court mediator, conciliator and master compromiser that Roberts promised to play but has not yet delivered.” We are not told how, precisely.

Unsurprisingly, Rosen also believes that Justice Obama should get involved in policymaking while on the Court:

There’s another distinctive perspective that he would bring to the bench: economic populism. After a long flirtation with the Tim Geithner, pro-Wall Street, “too big to fail” wing of the Democratic Party, Obama has at last thrown in his lot with the view, espoused first by Brandeis and now by former Federal Reserve chairman Paul Volcker, that huge corporations should be broken up before they threaten another crash. And this view badly needs a stalwart defender on a Supreme Court that seems on the verge of confronting an economically progressive Congress.

Just what the Supreme Court has to say about “too big to fail” is anyone’s guess; I know that this is Civics 101, but I suppose that it is necessary to repeat that the Supreme Court is not supposed to set economic policy. That’s a job for Congress. To be sure, corporate law cases go before the Court, but having dissed Chief Justice Roberts for abandoning “narrow, unanimous opinions decided on technical grounds,” Rosen wants a Justice Obama to . . . well . . . abandon “narrow, unanimous opinions decided on technical grounds” when it comes to corporate law cases, and presumably, shoehorn in a corporate law opinion the belief/ruling/populist call for “huge corporations” to be “broken up.” It’s bad when Chief Justice Roberts’s opinions, or the ones he signs on to, are not “narrow, unanimous opinions decided on technical grounds,” but it is perfectly fine to call for a Justice Obama to go beyond “narrowness” and “technical grounds” to work Rosen’s populist vision into case law. The hypocrisy is staggering.

Of course, not too much ought to be made of Rosen’s fantasies. They will likely remain just that. But it is amusing to see this kind of stuff written when (a) there isn’t a sand castle’s chance in an earthquake that “Justice Obama” will be a fact of life, and (b) when the argument for a Justice Obama is so riddled with holes, fallacies, and inconsistencies.

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