Much of the left seems inclined to shrug at President Barack Obama’s pre-emptive rebuke of the Supreme Court yesterday. One Democrat even urged Obama to attack the Court on the campaign trail if it overturned Obamacare. 

A few liberals, however, realize that Obama’s attack is a threat to judicial independence, and ought to be condemned by all.

One such was Ruth Marcus of the Washington Post, who said she would “lament a ruling striking down the individual mandate,” yet chided Obama for “channeling tired critiques from the right about activist judges,” calling his attack “unsettling.”

Marcus was right about the danger, but for the wrong reason: judicial activism is not the issue here. 

The president deliberately confused judicial activism–the wholesale manufacture of rights and laws by judges in accordance with their personal or political views–with judicial review, the power courts have to overturn unconstitutional legislation, which the Supreme Court has exercised since Marbury v. Madison (1803).

Obama’s assault on judicial review might seem bizarre–particularly coming from a former president of the Harvard Law Review, and a former lecturer in constitutional law at one of the nation’s most prestigious law schools–were it not for the fact that we now know of his connection to radical Critical Race Theory professor Derrick Bell.

Apparently, Bell had little interest in judicial review, since he believed the constitution itself to be racist. The Constitution allowed slavery to continue, after all, and even the post-Civil War amendments preserved the (unequal) institution of property, Bell argued. Therefore, he believed, pursuing racial equality through the courts was likely to be ineffective, and even counter-productive.

Bell’s ideas clearly left an impression on Obama, who assigned Bell’s textbook to his students at the University of Chicago. Obama’s own views about the constitution also bear a striking similarity to Bell’s.

In The Audacity of Hope, Obama’s second autobiography, Obama claimed that the Constitution “provided no protection to those outside the constitutional circle–the Native American whose treaties proved worthless before the court of the conqueror, or the black man Dred Scott, who would walk into the Supreme Court a free man and leave a slave.” (114)

Like Bell, Obama acknowledged, but rejected, “a school of thought that sees the Founding Fathers only as hypocrites and the Constitution only as a betrayal of the grand ideals set forth by the Declaration of Independence.” As an American “with the blood of Africa coursing through my veins,” Obama declared, he believed instead that the constitution itself was flawed, and that real change came about through radical, violent action by “the absolutists that have fought for a new order.” (116)

The power of judicial review is important to liberal legal scholars worldwide, but to radicals like Bell and Obama, even the boldest Supreme Court was limited by the fact that it operated within a constitutional system that needed to be transformed.

In 2008–days before the election, too late to make a difference–conservatives seized on newly-discovered remarks that Obama had made about the Supreme Court in an interview in January 2001 with Chicago’s local NPR affiliate, WBEZ-FM.

Obama had noted that “the Supreme Court never ventured into the issues of redistribution of wealth, and sort of more basic issues such as political and economic justice in the society. And to that extent, as radical as I think people try to characterize the Warren Court [1953-1969], it wasn’t that radical. It didn’t break free from the essential constraints that were placed by the Founding Fathers in the Constitution.” Obama added that the mistake of the civil rights movement was to be so “court-focused” that it had failed to assemble “coalitions of power” necessary to “bring about redistributive change”–which he intended to build.

In another interview, in September 2001, Obama told WBEZ that the Constitution was “a remarkable political document,” but that its embrace of slavery and “colonialism” was a flaw–not just at the time, but even beyond the Civil War amendments that ended slavery. The Constitution, he said, reflected “a [sic] enormous blind spot in this culture that carries on until this day” (my emphasis; audio below).

Those opinions, we now know, likely come from Bell, who criticized the Warren Court in similar terms, including the landmark Brown v. Board of Education case. Bell frequently argued that black Americans had to go beyond the court and seek fundamental change in the Constitution, including the creation of new socioeconomic rights.

In a speech in Denver, Colorado in 1984, Bell outlined a view of the Warren Court remarkably similar to the one that Obama would later relate to WBEZ in 2001 (my emphasis):

Even the liberal Warren Court was wary of broadening the Fourteenth Amendment’s coverage into the realm of economic inequality. With the exception of a few decisions finding that indigent defendants in criminal cases were entitled to a transcript on appeal (Griffin v. Illinois, 351 U.S. 12 (1956)), and counsel on the appeal (Douglas v. California, 372 U.S. 353 (1963), and strengthening the right of the poor to travel by striking down welfare residency requirements (Shapiro v. Thompson, 392 U.S. 618 (1969)).

But efforts to find the poor had a fundamental interest recognizable by the Constitution in the basic necessities–food, shelter, schooling, were rejected in a series of decisions in the early 1970s. These decisions keep the faith with the concept of the Constitution as it was written almost 200 years ago…A great Civil War finally answered the question of how a nation created to protect property could destroy property as it existed in slaves. We must seek a less bloody solution to the contemporary question of how a nation committed to the protection of property can limit that protection for some when it is necessary to insure the basic freedom, equal opportunity for all.

For both Bell, and Obama, the solution to the built-in flaws of the Constitution–namely, racism and the protection of private property–was to create new rights (such as health care) that would necessarily infringe on property rights.

Obama has taken the same approach as President, attempting to create a right to health care, and campaigning against the “one percent” who allegedly oppose redistributive change.

What is important about Obama’s attack on the Supreme Court yesterday is not that he attacked “judicial activism,” but that he attacked the court at all. It is clear that Obama does not even believe what he said about judicial review–i.e. that courts should not overturn a “duly constituted” law that had received a majority vote in the legislature. If he did, his Department of Justice would not be suing the state of Arizona over its immigration law, and would not be suing the state of Texas over its new voter ID law. In that sense, his comments are merely partisan hypocrisy.

But Obama, following Bell, does believe that the Supreme Court does not deserve the respect accorded to it by his predecessors (even FDR “usually waited” until the Court had made its decisions before criticizing it). 

As always, we should pay more attention to Obama’s actions than his words. The very fact that he disparaged the Court is more important than the muddled substance of what he said.

Liberals like Marcus are waking up to the danger that Obama’s radical approach poses to the future of our Republic. Whatever our differences on judicial activism, that is a fight for another day. It is time for conservatives and liberals to unite in defense of the Court itself.