Bench Memos

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The Daringly Heterodox Barack Obama?


In this recent essay, FindLaw columnist Edward Lazarus argues that Barack Obama’s “reactions to [the Supreme Court’s opinions barring the death penalty for child rapists (Kennedy v. Louisiana) and striking down the D.C. handgun ban (District of Columbia v. Heller)] have rendered predictions as to what kind of Justices he might appoint much more of a guessing game than one might have previously thought.”  Oh, really?  Let’s examine Lazarus’s argument:


1.  Lazarus starts by overstating Obama’s reactions to these cases.  Lazarus claims that Obama “sharply criticized” the decision in Kennedy v. Louisiana.  Lazarus doesn’t quote, or link to, Obama’s supposed criticism.  What I’ve found (in a quick search) is Obama’s statement that the death penalty “should be applied in very narrow circumstances for the most egregious of crimes,” that “the rape of a small child, 6 or 8 years old, is a heinous crime,” that it would have been fine if the Court had “constrain[ed] the abilities of states to do this [permit juries to sentence child rapists to death] in a careful and appropriate way,” but that the Court “basically had a blanket prohibition and I disagree with that decision.”  That certainly counts as disagreement, but it’s hardly sharp criticism.


Lazarus says that Obama “fully endorsed the Court’s unprecedented (and ‘conservative’) reading of the Second Amendment as including an individual right to bear arms (as opposed to merely a right to do so as part of a state militia).”  Well, yes, so far as that carefully couched assertion goes, but … Obama did not agree that the D.C. handgun ban violated the Second Amendment, and his position that Second Amendment rights are (as Lazarus puts it) “subject to reasonable regulation” appears indistinguishable from the position taken in Justice Breyer’s dissent.


2.  One need not be a cynic to recognize that Obama’s reactions to these rulings were part of a broader effort by a hard-left presidential candidate to posture himself as more of a centrist.  Lazarus states that he is “not so naïve as to believe” otherwise, yet he contends that he believes, “just as strongly, that Obama’s approach to these cases reflects much more than mere political calculation.”


In support of this contention, Lazarus asserts that Obama, far from being a “knee-jerk liberal”, has long held “heterodox jurisprudential views”.  But Lazarus offers only two pieces of evidence of Obama’s deviation from liberal orthodoxy, and both are laughably weak.  First, Obama believes that the Constitution “permits capital punishment as a general matter.”  But absolute and forthright opposition to the death penalty on constitutional grounds has not been a staple of liberal orthodoxy for a couple decades.  Not a single liberal justice on the Court applies that position.  (Justice Stevens recently voiced it for the first time, but has declined to apply it.)  Given that the Constitution expressly presupposes the existence of capital punishment, Obama’s position is hardly a sign of independent thinking.  (What next?  Will Obama dare to opine that each state is constitutionally entitled to two senators?)


Second, Lazarus states that Obama has long held the view that the Second Amendment “protects an individual right to bear arms, subject to reasonable regulation—a position often associated with one of his mentors at Harvard Law School, Professor Laurence Tribe.”  Note to Lazarus:  Agreeing with Larry Tribe is a mark of adherence to liberal orthodoxy, not of deviation from it.  And, as noted above, that “reasonable regulation” exception puts Obama with Breyer’s dissent.


3.  Lazarus claims that Obama’s statements about the Court’s recent rulings—including his support for the Boumediene ruling conferring constitutional habeas rights on aliens detained as enemy combatants at Guantanamo—“reflect a commitment to three extremely fundamental concepts: first, to the rule of law and the system of checks and balances that protects it; second, to judicial modesty and a concern about judges substituting their own moral judgments for those of elected representatives; and, third, to a willingness to take the Constitution’s text, history and tradition seriously in constitutional interpretation, even when this methodology leads to uncomfortable results.”  Not so: 


In Boumediene, the Court trampled the rule of law by ignoring its own sound precedent, and it upset the constitutional system of checks and balances by invading the province of the executive and legislative branches. 


Far from opposing “judges substituting their own moral judgments,” Obama has explicitly declared (as I discuss in this essay) that deciding the “truly difficult” cases—guess which those are—requires resort to “one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy,” and he has promised/threatened that he will select judges based on “who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom, the empathy to understand what it’s like to be poor or African-American or gay or disabled or old.”


As for a supposed methodology that “leads to uncomfortable results”:  Lazarus provides no evidence that Obama takes “text, history and tradition seriously,” and he misleads his readers into thinking that Obama agreed that the Constitution required the invalidation of D.C.’s handgun ban. 


4.  Obama’s political posturing aside, there is no mystery as to the kind of justices he would seek to appoint, as the passage two paragraphs above makes clear.  He will aim to fill the Supreme Court (and the lower federal courts) with liberal judicial activists who will impose the Left’s agenda—an agenda that Obama, quite sensibly, doesn’t have the courage to run on openly.

Tags: Whelan


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