On Judicial Independence

Obama spoke some ominous words yesterday to the Supreme Court in the wake of last week's Obamacare oral arguments. He stated, "I’d just remind conservative commentators that for years what we’ve heard is the biggest problem on the bench is judicial activism or a lack of judicial restraint — that an unelected group of people would somehow overturn a duly constituted and passed law,” Obama said. “Well, here’s a good example. And I’m pretty confident that this court will recognize that, and not take that step.”"

Well, someone needs to remind our Commander-in-Chief about his past career as a constitutional law professor. It's not just about the separation of powers, or checks and balances. Even Ruth Marcus found his remarks troubling.  I don't agree that all judges should be elected. But I do know that judicial independence is a concept that is our respected in our system of government, even if we disagree with the decisions that judges arrive at.  I didn't agree with Newt Gingrich's threats about it, and I certainly don't appreciate the undertone of our President.

Perhaps Obama should listen to Larry Tribe:

“The advantage of not being a lawyer is the ability to look outside the box,” Professor Tribe said. “The disadvantage is to be so woefully ignorant of what’s inside the box.  There are times, especially times of national panic,” Professor Tribe said, “when both of the elected branches are prepared to defy core constitutional protections of human rights and only a truly independent branch, one that has no need to worry about the election returns, can be counted on to hold the line and preserve our basic constitutional commitments.”

I don't know how the Court will decide the health care cases; I know what I believe about them. But I do know that ominously reminded the Court of its own unelected status isn't respecting judicial independence. Those justices were nominated by the (elected) President and confirmed by the (elected) Congress. Unless they are abdicating their responsibilities and now soberly deciding their decisions, there's no threat to be made.