As an initial matter, it is important to recognize the motivation behind Severino's critique. Though the Judicial Crisis Network (JCN) purports to abhor the "politiciz[ation] [of] the enforcement of the law" and seeks to ensure only "the rule of law," it is rather plainly understood by most to be a conservative organization that actively seeks to influence the legal system through political channels. Of course, there is nothing wrong with political groups from all parts of the ideological spectrum voicing their opinions on the qualifications of judges; in fact, it is supremely healthy for citizens with diverse views to debate issues with respect to the operation and direction of the law. It is rather hypocritical, however, for the JCN to decry the politicization of the judiciary while simultaneously railing against the "radical liberal political agenda" of the Democratic Party and seeking to manipulate judicial elections. It is difficult to square these actions with the ostensibly neutral mission of the JCN to ensure a "fair and impartial judiciary." While conservative commentators are perfectly entitled to hold and promulgate their views, denying a partisan agenda where one clearly exists is simply disingenuous.
Severino's article labels as "clever backpedaling" President Obama's recent emphasis on judicial restraint, making the interesting allegation that his criticism of conservative judicial activism is tantamount to rejection of Marbury v. Madison. Though Severino makes several very valid observations about judicial activism among past "liberal jurists," her claim regarding Marbury is far too broad and ultimately incorrect. This is because the validity of her argument turns not on any fundamental constitutional principle, but almost exclusively on her own enthusiastic endorsement of originalism as the preferred mode of judicial interpretation -- particularly originalism as practiced by the conservative Justices on the Supreme Court. Specifically, Severino asserts that,
"He [Obama] characterized the conservative reliance on the Founders’ original intent as leading to some sort of judicial power grab. The president equated originalist jurisprudence with an activism that ignores the will of Congress. His image of originalism is detached from reality. Even if true, his criticism would be useless, unless he is suggesting we reach back to 1803 and overturn Marbury v. Madison."
This argument makes several implicit assumptions that are highly questionable: (1) it equates judicial restraint with originalism; (2) it treats the originalist approach to judicial interpretation as the only correct method; and (3) even accepting arguendo that originalism is how the Court should interpret the Constitution, Severino's argument assumes that the originalism practiced by the Supreme Court accurately yields the "Founders' original intent." These assumptions are suspect on several grounds.
First, it is hardly clear that originalism itself is an adequate check on judicial activism. Though theoretical adherence to the intentions of the Founders would certainly circumscribe the power and practice of the Court, exactly what the Framers actually intended is highly controversial. Leaving aside the fact that the Framers themselves hotly debated how the Government should be structured and continually disagreed on many crucial issues, there is simply no purely objective way in which to ascertain such a uniform intent even if it could clearly be shown to exist.
Most cases in which the Framers' intent is important are those in which constitutional provisions are ambiguous or altogether silent. In such situations, Justices seeking 'original intent' have no recourse but to look to other historical materials such as publications, records, notes, memoirs, and prior legal cases. Even today, countless eminent historians, political scientists, and jurists continue to mine these sources for new insights and one would be hard-pressed to articulate conclusions on which they all agree. To be sure, attempting to learn what history and our traditions have to teach us is an invaluable tool, but to assume that a Supreme Court Justice is somehow more able than generations of scholars to discover, discern, and distill such an elusive object as the subjective general intent of a deliberative body that existed over 250 years ago is questionable to say the least.
More to the point, it is highly unlikely that Justices engaging in such a nuanced investigation -- whether they be liberal or conservative -- can discard personal biases or preconceptions to the extent required to ensure judicial restraint. This is one reason why many scholars have taken issue with the originalist approach and why it remains a topic of controversy in legal scholarship today. Purely because it is controversial does mean that originalism as a theory is unsound, but it does call into question its veneration as a panacea for all constitutional ills. Originalism as a theory is actually quite young, emerging in its modern form during the 1980's, and it can give rise to very real logical, doctrinal, and social complications. Thus, Severino's elision of valid objections to the theory -- and her unquestioning adoption of originalism as the solution to judicial activism -- severely undermines her argument.
Finally, even if it were the best way to effectively balance power between the branches of the federal government, it is hardly clear that the current Justices of the Supreme Court practice pure originalism. Few modern observers of the Court can honestly maintain that personal politics have no impact on how individual Justices (of all political leanings) rule. Because every case that comes before the Court is heard precisely because the law is ambiguous, decisions in controversial cases are often guided by other considerations such as morality, public policy, equity, etc. Whether or not one believes that this is proper is irrelevant -- the point here is that the influence of politics and personal beliefs on the jurisprudence of the Court can be readily observed. This calls into question Severino's apparent belief that the Court currently methodically and mechanistically applies the tenets of originalism.
Severino's criticism of President Obama demonstrates that the JCN embraces a conservative political agenda that values and espouses originalism. Such a position certainly has a place in the national debate. Her hyperbolic claims about overruling the "Marshall court of 1803," however, are wrong. While the Supreme Court is certainly empowered and obligated to act as a check on both Congress and the President, the Legislature and the Executive were designed to be a check on the Judiciary as well. The notion of the separation of powers presupposes individual powers to separate, and deference to the will of the legislature is emphatically not the same as saying that the Court should act as a "rubber stamp." Rather, it articulates the belief that the powers accorded to Congress in Article I are coequal with those vested in the Court by Article III and as such are deserving of respect and judicial deference when within the scope defined by the Constitution. This view is hardly unique to President Obama.
Moreover, even if one assumes that Severino's conception of the system of checks and balances is correct, it simply does not follow that originalism is the only -- or even the best -- way to achieve that scheme. It is actually quite ironic that Severino displays such respect for Chief Justice Marshall and his decision in Marbury. After all, in another of his most famous cases, McCulloch v. Maryland, Marshall himself proclaimed that ours is a "Constitution intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs" -- not quite an originalist sentiment.
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