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Midwest Democracy | As court season opens, conservatives and liberals question rules of the game

The season is only a few days old and already both sides are working the umpires.

They’re not arguing over a close call at the plate. Instead, Democrats and Republicans are locked in a nose-to-nose dispute this week over the U.S. Supreme Court’s role in reviewing the massive health care reform law.

The dirt-kicking rhubarb escalated Thursday. The Obama administration defended the Affordable Care Act, while a key GOP senator said White House criticism of the Supreme Court was dangerous and improper.

But for many people, the ongoing flap may have obscured an interesting and important twist: The sides have switched uniforms.

Liberals, who have vigorously applauded the court for overturning legislation on touchy issues such as flag burning and abortion, suddenly complained this week about “activist” judges.

“Should the Supreme Court overturn this law, it would be so far out of the mainstream that the court would be the most activist in a century,” said New York Sen. Chuck Schumer, a Democrat.

But conservatives, who have made criticism of “legislating from the bench” an election-year staple, said it’s fully within the court’s power to discard a massive law passed by Congress and signed by a president.

They also strongly rejected President Barack Obama’s controversial assertion Monday that a decision to toss out the law would be “unprecedented.”

Sen. Roy Blunt, a Missouri Republican, called Obama’s statement “outrageous.” Republican Sen. Jim DeMint of South Carolina called Obama a bully. And on Thursday, the Senate majority leader, Mitch McConnell, said the remarks crossed a dangerous line.

“He not only tried to publicly pressure the court into deciding a pending case in the way he wants it decided, he also questioned its very authority under the Constitution,” McConnell said. “With his words, he was no longer trying to embarrass the court after a decision. Rather, he tried to intimidate it before a decision has been made, and that should be intolerable to all of us.”

Obama’s remarks over the court’s role so incensed a federal judge that he ordered the Justice Department to tell him — on three single-spaced pages — if it thought the courts could decide

any

law’s constitutionality.

In its response Thursday, the department and Attorney General Eric Holder said they agreed judicial review of laws is fully proper.

But, the letter noted, “The Supreme Court has often acknowledged the appropriateness of reliance on the political branches’ policy choices,” and said that Obama’s remarks were “fully consistent” with that view.

The political back-and-forth over the decisions of unelected judges who serve for life was invented, of course, before baseball.

President Andrew Jackson battled high court rulings just a few years after Chief Justice John Marshall established the judicial right to “say what the law is” in 1803.

Franklin Roosevelt, frustrated at the court’s rejection of several New Deal programs in the 1930s, tried to pack the court with his own appointees, a plan quickly rejected by the public. Richard Nixon worried about an activist court extending rights to criminal suspects and upholding desegregation efforts.

In 1985, President Ronald Reagan promised to appoint judges “who understand the danger of short-circuiting the electoral process and disenfranchising the people through judicial activism.”

David Atkinson, an emeritus professor of law and political science at the University of Missouri-Kansas City, said complaints about court activism are common — but usually from the losing side.

“It all depends on whose ox is being gored,” Atkinson said.

Yet Joshua Hawley, a law professor at the University of Missouri and former clerk for Chief Justice John Roberts, said it wouldn’t be activism if the court throws out the health care measure.

“It’s only judicial activism if the court decides a constitutional issue that it doesn’t need to, or goes out of its way to overturn a line of precedents or suddenly discovers new powers in the Constitution,” Hawley argued. “And none of that is likely to happen in (the health care) case.”

Former U.S. attorney Todd Graves, a Republican, agreed. “Enforcing the written terms of the Constitution is not judicial activism,” he said in an email.

Jean Paul Bradshaw, also a former U.S. attorney and Republican, said “I view an ‘activist’ court as one that creates rights in order to fit a political agenda. But most people view it more broadly.”

That broad view is the one held by most politicians, who use it to attack judges, based on the circumstances.

Four years ago, for example, then-Rep. Roy Blunt blasted “unelected judges” for throwing out a ban on gay marriage in California, a statement echoed at the time by Mitt Romney and Rick Santorum, now GOP presidential candidates.

GOP presidential candidate Newt Gingrich has gone even further, suggesting Congress and the White House can ignore decisions with which they disagree.

“The executive and legislative branches can explicitly and emphatically reject the theory of judicial supremacy,” he wrote earlier this year.

Few legal scholars, however, would go that far. But many believe this week’s battle over what the court hasn’t yet decided is really a preview of this fall’s presidential campaign, when each side will use the court’s ruling to energize partisans on both sides of the health care argument.

But some are worried politicians are so busy kicking chalk on the umpires’ shoes that the legitimacy of the judicial branch will be diminished in the eyes of the public.

“It promotes a lack of respect for the court and for the rule of law in general,” Bradshaw said, referring to Obama’s criticism of the high court’s judges this week.

Still, UMKC’s Atkinson — who happens to think the court will uphold the Affordable Care Act — said the judges’ reputations probably will survive no matter what it decides.

“There will be a backlash, but the court is so resilient,” he said. “You can’t get more political than Bush v. Gore (in deciding the 2000 election), and the court took a hit. But it bounced back.”

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