Glenn Reynolds is very, very, special. It takes a truly grade A hack to start a piece of concern trolling this way:
For the past couple of months, Democrats and their pundit allies — apparently expecting to lose on ObamaCare in the Supreme Court — have been engaged in a campaign to delegitimize the high court in the eyes of the public. In a related development, Taliban spokesmen threaten to end polio vaccinations in areas they control unless the United States stops drone strikes.
Yes, the fact that Democrats are engaged in some criticism the Supreme Court, of the kind that has been an industry among conservatives for 50 years, makes the Democrats just like the Taliban. When they deny polio vaccinations to children. Similarly, when Glenn Reynolds criticizes Kelo or Boumediene, I’d say it’s like Pol Pot indiscriminately slaughtering intellectuals — futile and self-destructive.
Reynolds’s column has the two obvious problems the left-wing version of this argument does — 1)the idea that federal courts are bastions of liberalism is ludicrous, and 2)the idea that conservatives will stop seeking legal victories if liberals are restrained in criticizing a decision striking down the PPACA is even more fantastical. But this being Reynolds, there’s also some innovative nonsense:
Blowback from his failed court-packing scheme aside, that worked pretty well for FDR. In fact, from his time to the present, the Supreme Court has been a bulwark of the Democrats’ policy platform. Unpopular decisions — ranging from Wickard v. Filburn, to Miranda v. Arizona, to Roe v. Wade — have all been supported by reference to the court’s prestige and legitimacy.
First, Roe v. Wade is, of course, highly popular. Second, I’d love to see evidence that Wickard was unpopular when it was decided. And third, in the midst of an argument that liberals would be crazy to alienate the great friends they have in the federal judiciary the most recent case he cites is from 1973.
Most recently, the Bush administration meekly complied with Supreme Court rulings limiting its powers in the War on Terror despite its belief that the rulings were wrong and an unconstitutional invasion of executive power.
First of all, note the passive-aggressive criticism of the Supreme Court in a column arguing that it’s awful to criticize the Supreme Court. And second, yes, Bush acquiesced in some decisions he disagreed with. And nobody suggests that Obama will refuse to abide a decision striking down the PPACA. So what the hell does this have to do with anything?
And if, as seems increasingly possible, the next president is a Republican with a Republican Congress, the new administration will be in a stronger position to make sweeping changes without worrying so much about the courts. Might we revisit efforts to ban partial-birth abortion? Limit the rights of criminal defendants? Pass a new, tougher Patriot Act?
Yes, I’m absolutely terrified that if Obama criticized the Supreme Court Congress will try to pass bans on an abortion procedure that it already banned in 2003 with the Supreme Court’s approval in 2007. (I mean, I don’t have high expectations of Reynolds, but Jesus Christ this is pathetic stuff.) That particularly farcical bungling of basic facts aside, the answer is the chances of Republicans trying to do this stuff and the Supreme Court upholding it would be exactly the same whether Obama criticizes the Court or not. Which brings us to another question — if we assume Romney is going to win and will have a Republican Senate, why the hell would Democrats want to maximize the power of a Supreme Court where the median vote has to turn to his (or, much less likely, her) left to see Antonin Scalia?
It’s only June, but I think the contest for the worst op-ed published this year is over.