Here at Text & History, we have been critical in the past of how Barack Obama talks about his potential nominees to the Supreme Court. By suggesting he would nominate judges with “empathy” and who “bring in his or her own perspectives, his ethics, his or her moral bearings,” to the federal bench, Obama is leaning into conservative attacks and making judging seem more political than it is.

But nothing Obama has said this election season comes close to the nakedly political and flatly inaccurate view of federal judges expressed last Saturday at a rally in Pennsylvania by Vice Presidential nominee Sarah Palin:
A vote for Barack Obama is a vote for activist courts that will continue to smother the open and democratic debate we need on this issue, at both the state and federal level. A vote for Barack Obama would give the ultimate power over the issue of life to a politician who has never once done anything to protect the unborn.
Here it seems prudent to clarify a few facts.

First, of course, no president has “ultimate power” over anything done by the Supreme Court, a lesson learned by Presidents throughout history. Article III of the Constitution provides numerous protection for judicial independence, including most famously the mandate that judges serve for life. Once confirmed by the Senate, Supreme Court justices are essentially immune from political or public pressure when delivering rulings. This is how it should be.

Second, it is exceedingly odd to describe a Justice’s decision to “continue” the Supreme Court’s ruling in Roe v. Wade as “activist.” No matter your views on the original Roe opinion, the question of whether it should remain the law of the land depends in large part on the application of the conservative doctrine of “stare decisis” (respect for precedent). In fact, all five Justices voting to “continue” Roe in the 1992 case, Planned Parenthood v. Casey, were put on the bench by Republican presidents. And the lone appointee of a Democratic president on the bench for the Casey opinion, Justice Byron White, voted to overrule Roe. Having now addressed the application of stare decisis to Roe, the Court is even more constrained in overruling it. As Chief Justice Roberts himself explained in his confirmation testimony, Casey is precedent on whether Roe should be overruled (though Roberts declined to embrace Senator Arlen Specter’s assertion that Roe was now “super-duper precedent.)”

Palin’s comments indicate just how far the conservative legal project has traveled from its original stated objective of restoring “law and order” to the Supreme Court. Five Republican presidents have made “following the law” their rallying cry, appointing 11 of the last 13 Supreme Court justices, yet Roe remains on the books. This has frustrated conservatives to no end, and led to a new rallying cry: “No More Souters” (Justice Souter is a Bush I appointee who voted in Casey to uphold Roe).

When the target of conservatives is a Republican appointee who had the audacity to be independent on the bench, and when a Vice Presidential nominee thinks the President has “ultimate power” over the Supreme Court, the politicization of the federal judiciary has indeed reached new and dangerous heights.