Important reading, I think, for those who expect a “visionary” Supreme Court appointment…

From the NYTs:

In Obama’s view, the court is institutionally ill suited to solve the country’s problems. It’s hard to imagine that he wants to invest capital and energy into trying to turn the court into something he believes it was never intended to be.

Used as an epithet, “activist judge” is almost always applied to a judge who has just issued a decision that the speaker doesn’t like. Conservatives affix the label to the Supreme Court of the 1960’s and 1970’s, as well as to anything they object to about the current court. The ink on Justice John Paul Stevens’s letter of resignation last month was barely dry before conservative political candidates and bloggers lined up to bid good riddance to “the liberal activist now leaving the court.”

Exactly what the conservatives’ beef was with Justice Stevens wasn’t clear. Presumably, it was something other than the Stevens majority opinion inKelo v. City of New London, the 2005 decision that left democratically elected local governments free to condemn private property for the purpose of economic development.

Progressives, of course, have been having a field day denouncing the Roberts court’s decision in Citizens United v. Federal Election Commission, which opened the door to unlimited political spending by corporations and overturned recent precedents in order to reach that result. The ruling was “an astounding example of judicial activism,” according to Representative Jerrold Nadler, a New York Democrat who in his capacity as chairman of the subcommittee on the Constitution promptly convened a hearing on the decision’s implications.

Into this linguistic and jurisprudential thicket has stepped the former constitutional law professor Barack Obama, in a conversation with the pool reporters traveling with him on Air Force One last week. Asked whether he would use the pending Supreme Court nomination to push back against “conservative judicial activism,” the president responded with a 200-word soliloquy so densely packed as to lend itself to a variety of interpretations — and misinterpretations.

Characterizing an earlier era’s attacks on the Supreme Court, Mr. Obama said: “It used to be that the notion of an activist judge was somebody who ignored the will of Congress, ignored democratic processes, and tried to impose judicial solutions on problems instead of letting the process work itself through politically. And in the ’60s and ’70s the feeling was, is, that liberals were guilty of that kind of approach.

“What you’re now seeing, I think, is a conservative jurisprudence that oftentimes makes the same error,” he continued, and added, “The concept of judicial restraint cuts both ways.”

Was the president in fact, as some have suggested with either glee or dismay, imposing a kind of moral equivalency on the court then and the court now — a kind of “we had our activists and now they have theirs, and both made mistakes, so let’s move on”? Has he fallen into such apostasy as to cast aspersions on the very judicial accomplishments that liberals treasure?

While it’s possible to interpret his words that way, I read them differently. In fact, I think he meant the opposite of equivalency, and I think he said so, albeit cryptically, when he offered this description of what he called conservative jurisprudence: “What you’re seeing is arguments about original intent and other legal theories that end up giving judges an awful lot of power; in fact, sometimes more power than duly elected representatives.” He went on to say that, by contrast, “the core understanding of judicial restraint is that, generally speaking, we should presume that the democratic processes and laws that are produced by the House and the Senate and state legislatures, etc., that the administrative process that goes with it, is afforded some deference as long as core constitutional values are observed.”

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