Mr. Obama . . . is not a knee-jerk believer in the old-fashioned liberal view that courts should unilaterally impose civil liberties protections on unwilling majorities. His formative experiences have involved arguing for civil liberties in the legislatures rather than courts, and winning over skeptics on both sides of the political spectrum, as he won over the police and prosecutors in Chicago.
The first sentence is, indeed, normatively problematic, and I don’t think I can be criticized for being unwilling to criticize Rosen’s criticisms of liberal “judicial activism.” Fortunately, it’s just projection; neither Rosen nor Armando provides any evidence that Obama opposes courts strongly protecting civil liberties, or that he would appoint less liberal justices than Clinton. The second point is more important, and a strong point in Obama’s favor. Rather than hoping (usually in vain) that the courts will correct bad legislation, Obama actually tried to make bad legislation better in civil liberties terms. This is rather crucial, because Rosen most certainly has a point empirically: as history quite conclusively demonstrates without allies in other parts of the government the courts are, in fact, extremely unreliable protectors of civil liberties. The judiciary has done very little to rein in Bush’s assertions of arbitrary executive power, and this is predictable; without a better civil libertarian in the White House this trend will continue. It’s not a coincidence that the most prominent expansion of civil liberties in the Supreme Court’s history took place when Ramsey Clark could be appointed Attorney General of the United States, and that subsequent Courts appointed by more conservative presidents have gutted most Warren Court landmarks. Unlike Rosen, I don’t regard this as a largely salutary development, but Rosen is certainly right that this is what happens when the political branches aren’t committed to civil liberties.
Indeed, as Mark Graber recently argued where Rosen is more vulnerable in exaggerating the extent to which the Court’s greatest civil libertarian opinions have been “unilaterally imposed” against majorities. The most famous opinions of the last 50+ years, Brown and Roe, were always supported by national majorities, and even when the Warren Court’s school prayer and criminal procedure decisions were counter to majority opinion they had significant support in the executive branch. This is why getting a President with a decent commitment to civil liberties is critical.