A Conservative Argument

In thinking more about my post yesterday on President's Obama's "teachings" regarding the Supreme Court, I did not mention his criticism of the Court--a mirror of conservative criticism of the Court over the years--as practicing "judicial activism" and being a bunch of "unelected" judges who rule over us.  Charges of judicial activism, however, were first leveled at the Court by conservatives for reading things into the law that were not there, not for limiting the power of Congress.  In fact, the Supreme Court erecting limits of any kind on Congress is more unprecedented than anything else. 

Also, the conservative argument railing against unelected judges was always dumb.  Since the ratification of the Constitution, Article III judges were always unelected.  The Founders thought that this would help insulate the Court from being swayed by politics and popular opinions of the time.  The problem was never the fact that judges were unelected; the problem centered on the bad decisions that those judges make on a too frequent basis (a result of legal positivism being taught in law schools).  Putting terms on judges would only make this worse over time.  In an irony, conservatives who want to abide by the Founders principles instead rail against the constitutional framework the Founders set in place.  Obama really cares nothing about the constitutional framework, but he nonetheless copies the same arguments for purposes opposite of the politicians who first made them. (Conservatives first started using these arguments during the original intent debates during the Reagan Administration.)  That should also tell us something about the merits of both arguments on their face.