Some Context on Barack Obama, the Supreme Court and a Living Breathing Constitution

Several months ago, I was very troubled by Barack Obama's description of the type of Supreme Court justice he was going to choose.

Ninety-five percent of the time the law is so clear that it's just a matter of applying the law. I'm not somebody who believes in a bunch of judicial law-making.

What you're looking for is somebody who is going to apply the law where it's clear. Now there's gonna be those five percent of cases or one percent of cases where the law isn't clear. And the judge has to then bring in his or her own perspectives, his ethics, his or her moral bearings. And In those circumstance what I do want is a judge who is sympathetic enough to those who are on the outside, those who are vulnerable, those who are powerless, those who can't have access to political power and as a consequence can't protect themselves from being being dealt with sometimes unfairly, that the courts become a refuge for justice. That's been its historic role. That was its role in Brown v Board of Education.

First of all, it is a total distortion of the Supreme Court's actions to say that 95% of the cases are obvious. They aren't obvious to the justices themselves, because nowhere near 95% of the cases are decided 9-0. In fact, a very small minority are decided overwhelmingly. As such, this statement is absurd and totally without context.

What's more troubling is the manner in which Senator Obama wants justices to decide those cases where the law isn't clear.

Now there's gonna be those five percent of cases or one percent of cases where the law isn't clear. And the judge has to then bring in his or her own perspectives, his ethics, his or her moral bearings. And In those circumstance what I do want is a judge who is sympathetic enough to those who are on the outside, those who are vulnerable, those who are powerless, those who can't have access to political power and as a consequence can't protect themselves from being being dealt with sometimes unfairly, that the courts become a refuge for justice.

In other words, where the law is unclear, Senator Obama wants Justices to dismiss the Constitution entirely and instead focus on protecting the weak over the powerful. He sees the Supreme Court as the last refuge for the little guy in their struggle against more powerful forces.

Now, let's look at the infamous tape of his 2001 interview.



Here is the important part again.

If you look at the victories and failures of the civil rights movement and its litigation strategy in the court. I think where it succeeded was to invest formal rights in previously dispossessed people, so that now I would have the right to vote. I would now be able to sit at the lunch counter and order as long as I could pay for it I’d be o.k. But, the Supreme Court never ventured into the issues of redistribution of wealth, and of more basic issues such as political and economic justice in society. To that extent, as radical as I think people try to characterize the Warren Court, it wasn’t that radical. It didn’t break free from the essential constraints that were placed by the founding fathers in the Constitution, at least as its been interpreted and Warren Court interpreted in the same way, that generally the Constitution is a charter of negative liberties.

...

I’m not optimistic about bringing about major redistributive change through the courts. You know, the institution just isn’t structured that way.

Given what Senator Obama previously said about 95% of the cases being obvious, everything starts to make a lot of sense. The courts aren't structured in a manner to bring "distributive change" because he believes most cases have clear case law. In those places where the case law isn't clear, what Barack Obama wants is a judge that will act as a social engineer. He wants a Supreme Court justice that will even the playing field in the court, because outside it is terribly uneven. That's what he means by a living, breathing Constitution. Where the case law and Constitution is clear, you follow that. Where it isn't, you use the courts as a means of "social and economic justice". In other words, if someone kills a poor six year old, and the search, key to the arrest of the perpetrator, may or may not have violated the fourth amendment, then the case should be decided not by examining the merits of the evidence in the context of the fourth amendment, but rather by how the little boy can get justice.

In fact, this philosophy is completely in context with his philosophy of income redistribution. The wealthy have an unfair advantage in this world, and so Senator Obama sees his own role as attempting to even the playing field. That's of course rank Socialism, Marxism, and social engineering, and it's clear that the sort of Supreme Court justices he wants will believe that the Supreme Court is the proper venue for such philosophy, where the case law is not clear.