OMG! Democrats Are ‘Demonizing’ the Supreme Court

Most liberals have been highly critical of the Supreme Court’s ruling in the McCutcheon case, as they were with the earlier Citizens United decision. For some reason, that seems to bother Randy Barnett, one of my very favorite constitutional scholars, very much.

Senate Democrats and liberal groups are mounting a pressure campaign against the Supreme Court, hoping to influence future decisions by blasting conservative justices for alleged political bias.

The effort from the left also portrays the high court as an instrument rigged to help the wealthy, and is intended to energize Democratic voters and increase turnout in the midterm elections.

Some legal experts see the effort as akin to basketball or soccer players “working the ref” in a high-stakes game…

“The left clearly tried to work the refs on the Affordable Care Act,” said Randy Barnett, a professor at the Georgetown University Law Center. “They worked the refs after Citizens United, which helped set things up for the Affordable Care Act challenge. If it seems to work, why not continue? It’s unfortunate, I think, that they’ve been encouraged in this behavior by its apparent success.”…

Barnett said Democrats are likely using the court to rev up Democratic voters in the same way they have used the Koch brothers.

“This very well likely is also about finding an issue other than healthcare and the economy in 2014. This is like attacking the Koch brothers from the floor of the Senate every other day,” he said. “It’s another way of trying to gin up the base of the Democratic Party.”

I like Randy Barnett a lot and I’ve promoted his scholarship on my blog for the better part of the last decade. His “presumption of liberty” interpretation of the 9th Amendment changed the way I thought about constitutional law greatly. But come on, Randy, are you serious? Democratic criticism of the Supreme Court when they issue a ruling they don’t like is so inconsequential when you compare it to what Republicans have done for decades.

Which party submits bills to limit the authority of the courts to rule on issues where they disagree with the courts’ rulings (establishment clause cases, for example, and detainee habeas corpus cases)? That would be the Republicans. Which party openly advocates defunding courts that issue rulings they don’t like? That would be the Republicans. Which party rails endlessly about “black-robed tyrants” destroying the country? That would be the Republicans.

Go look at the Republican reaction to the flag burning decision, the Terri Schiavo decision, Lawrence v Texas and last year’s same-sex marriage rulings. Then come back and tell me again about how the Democrats demonize the courts.

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  • busterggi

    Mr. Barnett apparently hasn’t noticed the 30+ years of Republican demonization of the court over Roe v. Wade.

  • John Pieret

    They worked the refs after Citizens United, which helped set things up for the Affordable Care Act challenge. If it seems to work, why not continue?

    Whut? What did Citizen United have to do with the ACA? That’s like a football team working the refs to get better calls in a basketball game. And if it “worked,” why did SCOTUS strike down the the aggregate limits on campaign donations in McCutcheon?

    Even very bright constitutional scholars can occasionally over think themselves into knots.

  • Abdul Alhazred

    I find the Democrats’ reaction highly disturbing.

    Republicans being foul hypocrites about it (and they are) does not ameliorate the disturbance.

  • doublereed

    Is he for real? Over 80%+ of Americans disapprove of the Citizen’s United case. It’s actually quite dishonest to paint this as a partisan issue like the ACA.

    Republican candidates could win a lot of votes if they used such cases the same way Democrats do, but of course many of the prominent ones like McConnell are all for it.

    And I’m also extremely confused with #2. They ruled the other way. How can you accuse democrats of influencing them when they didn’t?

  • Pierce R. Butler

    I hope nobody brings in exorcists to de-demonize SCOTUS before we get video of the Bush 5 spinning their heads around while spewing pea soup.

  • http://polrant@blogspot.com democommie

    “hoping to influence future decisions by blasting conservative justices for alleged political bias.”

    There’s no fucking “alleged” about it.

  • Phillip IV

    Demonizing Scalia would be tough – you’d have to find a lot of hitherto overlooked good aspects to him to bring him down to that level.

    But aside from Barnett’s hypocrisy in ignoring Republican behavior, I don’t even get his whole point. Isn’t a public discourse on constitutional matters supposed to happen? Isn’t it natural for political parties to try to shape that discourse in their favor?

  • http://www.ranum.com Marcus Ranum

    blasting conservative justices for alleged political bias.

    Identifying them as “conservative judges” means they’re politically biassed. Duh?

  • Chiroptera

    Senate Democrats and liberal groups are mounting a pressure campaign against the Supreme Court, hoping to influence future decisions by blasting conservative justices for alleged political bias.

    Huh. Unless the “pressure campaign” includes overts acts of violence against the justices and their families, or includes the use of police and military personnel to force the justices to do their bidding, I don’t see the problem. It sounds to me like the Senate Democrats are liberal groups are mounting a campaing to commit democracy.

  • http://www.pandasthumb.org Area Man

    But aside from Barnett’s hypocrisy in ignoring Republican behavior, I don’t even get his whole point. Isn’t a public discourse on constitutional matters supposed to happen? Isn’t it natural for political parties to try to shape that discourse in their favor?

    That’s what I was going to say. Barnett seems very upset that we live in a democracy, and that people might react to rulings they don’t like with political advocacy or the mobilization of voters.

  • coffeehound

    democommie @ 6

    +1

    Just attempting to follow Robert’s and Thomas’ argument in McCutcheon required mental gymnastics that gave me a headache. Creating that drivel required real faithful dedication on his part.

  • coffeehound

    his >their.Doh.

  • tomh

    Democrats may well be trying to influence future decisions. Unfortunately, they’re not very good at it.

  • http://en.uncyclopedia.co/wiki/User:Modusoperandi Modusoperandi

    The effort from the left also portrays the high court as an instrument rigged to help the wealthy…

    If it walks like a duck and quacks like a duck…

  • Michael Heath

    Randy Barnett has changed, he’s not the person he was. I think he believes those viral conservative emails.

    His argument on the constitutionality of the ACA was as petulant and juvenile as Scalia and Kennedy’s. I too fondly recall his book on the presumption of liberty. But that Barnett no longer exists. Gone is the dispassionate analysis, replaced with all the obvious remedial logical and rhetorical fallacies we encounter from the morons on the right like Bill O’Reilly and Sarah Palin.

  • Hercules Grytpype-Thynne

    “Gin up” doesn’t mean what Barnett thinks it means.

  • gopiballava

    Wow. This sort of attempt to influence a supreme court decision is just unprecedented. The justices are going to be subject to impassioned pleas by biased, partisan advocates. They will have to listen to people telling them how wrong and unjust it would be for them to decide a certain way. I can’t imagine how they’re going to handle this new and unfamiliar experience.

  • Crip Dyke, Right Reverend Feminist FuckToy of Death & Her Handmaiden

    This is why Randy Barnett publishes in law journals – the only place where you can be guaranteed that no one is trying to influence the way judges and other lawyers, think, reason, and decide.

    And you thought Republicans were hypocrites.

  • dingojack

    So Mr Barnett’s thesis is – Justices get to tell people what the law is, from on high (cue heavenly choir) and the hoi polloi just have to like it and stay silently deferential —

    except when the bench does ‘a jump to left’ and then it’s JUDICIAL TYRANNY!!!eleventy-one!!

    Got it. @@

    Dingo

    ——–

    * Ed I’ll take your word on his scholarship, but as an introduction to a person, this is not creating a good impression.

  • http://polrant@blogspot.com democommie

    @ Michael Heath:

    I don’t know anything about Barnett, but I see from his bio that he works at the Cato Institute. Cato is a repository of an awful lot of libertarepubliKKKonservatard bullshit–notwithstanding that they get something right from time to time.

    @Modusoperandi:

    I’m concerned. Are you feeling a bit under the weather?

    This:

    “If it walks like a duck and quacks like a duck…”

    could have so easily been:

    “If it walks like Scrooge McDuck and quacks like ScroogeMcDuck…”

    Just sayin’ {;>)

  • dogmeat

    It sounds to me like the Senate Democrats are liberal groups are mounting a campaing to commit democracy.

    The bastards!!! How dare they!?!?!?

    I find it interesting that he makes this claim when the court has rendered two really crappy rulings that have already dramatically impacted elections and are likely to do so for the foreseeable future. Citizen’s United was a rather blatant example of judicial activism that was a terrible ruling to boot. McCutcheon is something of a “so you think that was a bad ruling? How’s this one for you!?” situation where they have likely made the situation ten times worse through both practice and precedent. It strikes me that Barnett and conservatives are generally fine with the ruling(s) because they benefit their “team.”

  • Carlos Cabanita

    We hold these truths to be self-evident, that all men have rights in the proportion of their wealth.

  • colnago80

    Re Michael Heath @ #15

    This also describes the progression of columnist Charles Krauthammer from a stand up guy into a shill for the tea baggers.

  • abb3w

    @ Area Man

    Barnett seems very upset that we live in a democracy, and that people might react to rulings they don’t like with political advocacy or the mobilization of voters.

    I think that actually might be very close.

    More exactly, I think it may be that as a scholar of the law, Randy Barnett prefers to think of judicial principles as fixed. And that does make the problem of understanding the law more tractable, and even works as a pretty good approximation. However, in the bigger scope and on longer time frames, judicial principles are an expression of politics — rules for which there is some degree of consensus at least temporarily. A ruling by the supreme court is the last word in the arena of Law; but inconveniently for scholars, that then means any controversy enters the arena of politics. The American system of checks and balances is designed to insulate the Judiciary from (in the eyes of the Founding Fathers, frequently foolish) short-term swings in political mood. In so far as a judicial ruling is astray from the prevailing political consensus due merely to such a swing, the difference fades; but in so far as it falls astray due to a sustained change, a sustained pressure to shift the principles will occur.

    That law is merely a case where politics continues by other (gentler) means makes for a messier view, which would disgust any legal scholar who sensibly values being able to sleep peacefully at night.

    (Hm… potential build up across a resistive barrier; I wonder if this could be modeled explicitly using capacitance.)

  • Crimson Clupeidae

    Modus@14:

    That’s Mr. Scrooge McDuck to you!!

  • abb3w

    @24, abb3w

    (Hm… potential build up across a resistive barrier; I wonder if this could be modeled explicitly using capacitance.)

    Ooh, the entry on “capacitor” also has a subsection referencing breakdown voltage — which would seem to correspond to where the imbalance between judicial principles and the actual principles of the public gets too high, and the imbalance is abruptly reduced by change in law (or change in judges).