Wm. T. (Bill) Robinson, the President of the ABA chided President Obama in the New York Times yesterday for suggesting that the upcoming decision of the Supreme Court regarding the Affordable Health Care Act threatened to be an example of judicial activism by an unelected group of people. Robinson proceeded to invoke Marbury v. Madison and proceeded to find a duty of public officials to continually demonstrate that the Court is not a political arena.
Really? No constitutional lawyer worth his or her salt can fail to observe the politics of Marbury v. Madison, and the politicians of the time were quick to say so. Was it really a duty of public officials not to criticize the Court for its partisan decision in Bush v. Gore? The President of the ABA may think it is his duty to place his head in the legal sand oblivious to the fact that he is surrounded by political water. He may think it is his duty to pretend that there is a clear line between law and politics never crossed by judges. But he is off base inventing duties for public officials to go along with trumped up fiction. I would rather think that public officials have a duty to speak the truth about judicial power rather than join a chorus of political apologetics.