If the week of April 2, 2012, goes down in political history, it’ll be for the fact that Republicans suddenly rediscovered their reverence for the third branch of government.
What brought about the change of heart? President Obama’s comments on Monday and Tuesday in which he opined that an adverse Supreme Court ruling on his health care law would represent an extraordinary act of judicial overreach.
On Tuesday, in an extraordinarily unusual step, three Republican appointees to the Fifth Circuit Court of Appeals went toe-to-toe with the president in the political sphere. On Thursday, Senate Minority Leader Mitch McConnell advised Obama to “back off.” The courts’ authority is to be respected, regardless of outcome, he said.
This is a rich new twist for the GOP, which has made decades of sport out of attacking an out-of-control judiciary for legislating from the bench. You literally only have to look back to this GOP presidential primary to find examples of Republicans questioning the courts’ legitimacy and even threatening to neuter them using powers reserved for the other two branches of government.
Here’s a brief digest:— Sen. Jim DeMint (R-SC) now says Obama is trying to “bully” the Supreme Court. But in 2004 he sponsored legislation that would have drastically altered the nation’s system of checks and balances — it would have allowed Congress to overturn a high court decision with a two-thirds majority in each chamber.
— In 2005, furious at the courts over the Terri Schiavo case, Majority Leader Tom DeLay vowed that the Republican-controlled House would “look at an arrogant and out-of-control judiciary that thumbs its nose at Congress and the president.” He said the “time will come for the men responsible for this to answer for their behavior.”
— At the Palmetto Freedom Forum in September 2011, Newt Gingrich argued that “the legislative and executive, on occasion, have a right to correct the judiciary, or the judiciary is the dominant branch and can dictate to the rest of us.”
— In Iowa one year ago, Rep. Michele Bachmann (R-MN) said that the federal government can “limit the subject matter that justices can rule on. We have it within our authority to decide what judges can rule on and what they can’t.”
— At a GOP primary debate last October, Rick Santorum said same-sex marriage was authorized in Iowa because “seven justices forced gay marriage on the people” and in response, he went to Iowa “and made sure that those three justices were defeated.”
— Sen. John Cornyn (R-TX), a member of the GOP leadership, warned against “judicial activism in July 2009 on the Senate floor. He said overreach by the courts “has the necessary consequence of taking power away from the elected representatives and thus the people themselves, and conferring those in life-tenured, unelected judges.” Years earlier he said a spate of attacks on courthouses might be linked to overzealous judging. “I don’t know if there is a cause-and-effect connection, but we have seen some recent episodes of courthouse violence in this country. … And I wonder whether there may be some connection between the perception in some quarters, on some occasions, where judges are making political decisions yet are unaccountable to the public, that it builds up and builds up and builds up to the point where some people engage in, engage in violence. Certainly without any justification, but a concern that I have.”
— Mitt Romney slammed the Massachusetts Supreme Court when it “inexplicably” permitted same-sex marriage and said that he “fought to have a stay on that decision.”
–Sen. John McCain (R-AZ) said “activist judges” assume the judiciary is “a super-legislature of moral philosophers entitled to support Congress’s policy choices whenever they choose.” He said the Constitution “solely tasks the Congress with creating law, not the courts.”
— President Bush argued that “judges ought not to take the place of the legislative branch of government.” On the campaign trail, he declared judicial activism a province of the left: “If you think activist judges should be allowed to redefine our country and issue new laws for the bench, vote Democrat. But if you believe the role of the judge is to strictly interpret the Constitution and leave the legislating to the legislators, vote Republican.”
Here’s a video mash-up:
If the Supreme Court upholds the law, it’ll be tempting for Republicans to forget this week’s pious talk and return to their judge-bashing roots. But McConnell insists that won’t happen.
“If the court upholds the law, I’ll be disappointed. I’ll disagree with it. But I’ll respect its independence,” he said Thursday. “And then I’ll continue to do everything I can to have this law repealed through the legislative channels that remain available. But here’s something I won’t do: I won’t mount a political campaign to delegitimize the court in the way some in Congress have been urging this president to do, and in the way that he started to do earlier this week in the Rose Garden. I’ll respect the Supreme Court, even when I disagree with it.”
An earlier version of this story misattributed a John Cornyn quote to John McCain. We regret the error.