Somehow I missed it two weeks ago when the President took umbrage with my favorite Supreme Court era, claiming that the Warren and Berger Courts made an error by being “liberal judicial activists.” Glenn Greenwald explains,
“Now, there’s nothing sacrosanct about those courts, and there’s nothing per se wrong with criticizing them. But given that the defining rulings of those decades have long formed the bedrock of the progressive understanding of the Constitution and the judiciary, that the dominant Justices of that era (Brennan, Marshall, Douglas, Black) are the iconic liberal judges of the 20th century, and that those decades produced the most vital safeguards for core Constitutional guarantees and critical limits on executive power, Obama — as I said yesterday — should at least specify which decisions he finds “erroneous” and illegitimate.”
President Obama declined to name specific cases that led him to this belief. I have included a brief list of prominent cases from that era:
- Brown v. Board of Education (1954)
- Mapp v. Ohio (1961)
- Gideon v. Wainwright (1963)
- Miranda v. Arizona (1966)
- Tinker v. Des Moines (1969)
- Roe v. Wade (1973)
- United States v. Nixon (1974)
- Regents of the U. of California v. Bakke (1978)
There are two very controversial decisions in the list (Brown and Roe), but otherwise, I don’t think there is a ton of controversy about the other cases (with maybe the exception of Bakke). Let me know if I am wrong about that.
This isn’t the first time the President has faced controversy regarding statements he made about the Warren Court. It is kind of fun to watch the emergence of President Obama’s position on the issue given many of us thought he, while probably not thinking the Warren Court was “not radical enough,” thought they were appropriately progressive. It took two years for us to find that, in fact, they were too radical for him.