October 29, 2008

October 29, 2008 | Commentary on Legal Issues

Obama's Ideas for a Radical Court

In a 2001 radio interview that's just come to light, Barack Obama discussed the Supreme Court's role in redistributing wealth. Call it Obama's "Joe the Plumber meets Justice Brennan" moment.

Contrary to some screaming Web discussions, Obama did not - at least as a practical matter - promote using the courts to redistribute wealth. Yet the interview was still revealing.

For starters, in it Obama again spoke favorably of "major" redistribution of wealth, and he gave hints about his liberal views on the judiciary.

As with most of Obama's public comments, his remarks in the interview were measured. In discussion of the high court's liberal heyday under Chief Justice Earl Warren, for example, he said, "The court never ventured into the issues of redistribution of wealth and more basic issues of political and economic justice in the society."

As a former student of Obama's at the University of Chicago, I'd note that this was rather typical of his teaching style - stating liberal propositions in a descriptive way, while neither acknowledging the radicalism of the underlying premise nor stating whether he agrees with it.

That is, Obama's statement describes a liberal objective - redistributing wealth through the courts - but he doesn't actually say whether he believes the court was correct in failing to venture into redistribution or even whether he supports redistribution.

But he did make it clear where his sympathies lie: "One of the, I think, tragedies of the civil-rights movement was, because the civil-rights movement became so court-focused, uh, I think there was a tendency to lose track of the political and community organizing and activities on the ground that are able to put together the actual coalitions of power through which you bring about redistributive change, and in some ways we still suffer from that."

Notwithstanding his support for redistribution in theory, Obama said he was "not optimistic about bringing major redistributive change through the courts."

Let those words sink in for a moment: major redistributive change. If his plans for taxation and spending didn't make it plain, Obama's goal should be clear now. And his objection is simply that the courts aren't very good at carrying out long-term redistribution - not that major "sharing the wealth" shouldn't come from other branches of government.

Which leads to a second observation on the interview, concerning Obama's views of the high court. After noting the Supreme Court's lack of redistributional adventurism, he muses: "To that extent, as radical as I think people tried to characterize the Warren Court, it wasn't that radical."

Sure, the Warren Court invented a right to privacy out of whole cloth (or, if you prefer, out of the penumbral emanations of the First, Third, Fourth, Fifth, Ninth, and Fourteenth Amendments). Sure, it rewrote criminal law in ways that made it possible for thousands of criminals to walk free thanks to technicalities. But it didn't engage in wholesale redistribution, so it wasn't really "radical."

Obama's umbrage at those who would "characterize" the Warren Court as radical isn't terribly surprising. He has previously cited Earl Warren as the model for the kind of justice that he would pick. And he has repeatedly said he wants judges who demonstrate empathy - which, as luck would have it, appears to involve a bit of a redistributional ethic.

Thus, in his floor statements explaining his votes against the confirmation of John Roberts as chief justice and Sam Alito as justice, he played on the class-warfare theme, criticizing each for too often siding with the rich and powerful against those he deems to be powerless.

In making such assessments, Obama didn't offer even a hint of reflection on whether the law might have required the rulings he disliked, just a lamentation about the distribution of the outcomes.

Given the tsunami of attention paid to the interview, the Obama campaign turned to Harvard professor Cass Sunstein for a bit of spin control. Sunstein stated: "What the critics are missing is that the term 'redistribution' didn't mean in the constitutional context equalized wealth or anything like that. It meant some positive rights, most prominently the right to education, and also the right to a lawyer."

Give the Obama camp some credit: Sunstein knows a thing or two about redistribution. "Markets and wealth depend on government," he has written - so you really have no reason to complain when government takes what you believe to be "yours" and redistributes it as it sees fit.

That said, Sunstein's defense falls short. After all, Obama described the Warren Court as "never venturing" into redistribution. Yet Sunstein's example of what Obama "really" meant - access to a lawyer - was decided by the Warren Court. We are left to believe that Obama meant something more, perhaps something like what he said: redistribution of wealth.

While Obama didn't say that the courts should be involved in the redistribution game, the now-infamous interview makes clear that he supports both radical redistribution and, with respect, a radical court.

Robert Alt is senior legal fellow at The Heritage Foundation.

About the Author

Robert Alt Visiting Fellow
Edwin Meese III Center for Legal and Judicial Studies

Related Issues: Legal Issues

First appeared in the New York Post