Obama and judicial activism

David Bernstein @ Volokh — not one to be suspected of sugar-coating his treatment of the subject — listens to the Democrat’s 2001 Chicago public radio interview, and finds reasons to be cautiously optimistic about Obama’s view of the role of courts:

…Obama was clearly influenced by [the] Rosenberg/Klarman thesis that the Supreme Court rarely diverges much from social consensus, and can’t be expected to.

On the issue of whether Obama endorses redistribution of wealth through the courts, it certainly sounds to me like he thinks the Rodriguez case (holding 5-4 that unequal funding of public schools does not violate the Equal Protection Clause) was wrongly decided, and that state courts that have mandated equal funding for public schools are correct. But he also seems to think that it was a huge error for activists to try to achieve more general redistribution through the Due Process Clause of the Fourteenth Amendment. (In the waning days of the Warren Court, there was a movement to try to constitutionalize a right to a minimum income.) Co-interviewee Dennis Hutchison even suggests that in pre-interview conversation, Obama agreed with him that Goldberg v. Kelley, establishing procedural protections for welfare recipients, was wrongly decided, or at least promised much more than it could possibly achieve.

Based on this interview, it seems unlikely that Obama opposes constitutionalizing the redistributive agenda because he’s an originalist, or otherwise endorses the Constitution as a “charter of negative liberties,” though he explicitly recognizes that this is how the Constitution has been interpreted since the Founding. Rather, he seems to think that focusing on litigation distracts liberal activists from necessary political organizing, and that any radical victories they might manage to win from the courts would be unstable because those decisions wouldn’t have public backing. The way to change judicial decisions, according to Obama, is to change the underlying political and social dynamics; changes in the law primarily follow changes in society, not vice versa. Again, he’s channeling Rosenberg and Klarman. And this attitude on Obama’s part shouldn’t be surprising, given that he decided to go into politics rather than become a full-time University of Chicago constitutional law professor, as he was offered. Had he been committed to the idea that courts are at the forefront of social change, he would have been inclined to take a potentially very influential position at Chicago. (And judging from this interview, he would likely have been a great con law professor, both as a teacher and scholar, and, had he been so inclined, legal activist.)

P.S. Was “cautiously optimistic” the right phrase to describe David Bernstein’s reaction? Read his whole post as updated, as well as Ted’s contributions in comments.


  • Obama’s vote against Roberts for the stated reason that he does not believe that judges should follow the law 100% of the time, but instead follow their hearts some small percentage of the time, is far more telling and disturbing.

    Bernstein’s point would perhaps be all well and good if we were talking about Obama as a Supreme Court nominee. But we’re talking about Obama as an executive who will be appointing judges, and there is absolutely no indication that Obama will “channel Rosenberg and Klarman” in making those selections. The shortlists for the Supreme Court would unquestionably drag the Court to the left; a Fried or a Kmiec may endorse Obama, but Obama is not going to endorse a Fried or Kmiec.

  • Obama on Redistribution of Wealth:…

    As Orin points out below, Drudge is highlighting excerpts of a 2001 interview Barack Obama did with Chicago public radio, in which he advocated “redistributive change.” The context was a discussion of the Supreme Court and const……

  • One fact check item: Obama was not offered a career track postion on the U of C faculty. He was just a lecturer. I believe this got discussed at length on the Volokh blog.

  • Anyone who thinks Obama is not going to utterly corrupt the federal courts needs to re-enter earth’s atmosphere.

  • I don’t know if I would agree with the term “corrupt” though it depends on semantics, I suppose. However, in light of the fact that the left has a history of using the judiciary as a means to advance things that might otherwise be left to the other two branches, I think we’ll see a much more exciting parade of cases sent that way. I keep thinking about a switch in time that saved nine…and wonder about an increase in scope and reach of the federal benches.

  • Everybody seems surprised that Obama “would drag the court to the left”. Maybe it’s just concern and not surprise but should we expect this if Obama get in? Of course the illuminati are going to take over these places of importance and influence if their man gets into the white house.

    So besides the obvious, which i stated above i think it’s interesting that Obama wants someone who follows his heart, rathe than the law. That sound right, which is what Obama is all about, sounding right and good, but really? That is such a dangerous line to dance on. As much as i agree that sometimes people need to follow their hearts more than the rules it seem like when it comes to judges there is no option but to follow the law to the T, their judges. If they want to change the law do it but until it changes they have to follow it, right. They are judges!