Last week, after three days of tough argument before the Supreme Court, the President created a stir when he said that it would be "unprecedented" for the Supreme Court to overturn his national healthcare plan. Obama further questioned the legitimacy of "unelected" and "activist" judges.

Conservatives went crazy! How could the President criticize the authority of the Supreme Court?

On December 18, 2011, Republican candidate Newt Gingrich lost significant momentum when he told the nation on Face the Nation that judges, at least in some circumstances, should be called to account for their decisions that ignore the public will, either by being brought before Congress or in some cases by being removed from office. In fact, Gingrich had written a 54-page position paper on the topic, specifically pointing to the 1958 anti-segregation ruling in Cooper v. Aaron. In Cooper, the Supreme Court asserted that the Court's opinion on the Constitution was more important than the interpretations of Congress or the Executive Branch.

Liberals went crazy! How could an aspiring President criticize the authority of the Supreme Court?

It is a running joke that any decision that the Supreme Court makes that one disagrees with is made by "activist," "unelected" judges. If your side doesn't win, blame the Court! And in the past few years, decisions have gone both ways as the Court, comprised of justices presently appointed over the course of 24 years ranging from Antonin Scalia, appointed in 1986 to Elena Kagan, appointed in 2010.

The reality is, if Newt Gingrich is right then Barack Obama is also right. Obama can simply read off Gingrich's paper and make the same arguments. The sitting President, empowered by a sympathetic Congress can do whatever it wants and the Supreme Court can simply stand by and wring its hands. The Patriot Act can continue to exist without challenge as can ObamaCare.

Perhaps this is one thing that Gingrich and Obama can agree on – that the President and Congress has electable, kingly authority. In reality, the only way either one of them would be happy with the proposed arrangement is if their party is in control. Otherwise, the minority party would have no judicial recourse or appeal.

If anything, when politicians think in two- and four-year increments, the Court has perhaps become too political, with justices appointed who are expected to carry forward particular agendas rather than providing long-term Constitutional interpretations. Electing justices would only make things worse. There is a process for changing the Court, but as with changes to the Constitution itself, they take place slowly.

In times like this, we would do well to remember the words of Lord Acton, that "power tends to corrupt, and absolute power corrupts absolutely," and seek to preserve the integrity and role of the Supreme Court.



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