Robert Barnes at WaPo:
Chief Justice John G. Roberts Jr. has presented the rebuttal argument in Obama v. Supreme Court.
Roberts’s remarks Tuesday protested the timing of President Obama‘s State of the Union disapproval of the court’s decision in a major campaign finance case. It has begun Round Two in what appears to be a growing inclination from the White House and Democrats in Congress to criticize the court’s decisions.
The White House fired back Tuesday night with a statement that did not address the substance of Roberts’s comments but with another broadside at the court’s decision in Citizens United v. Federal Elections Commission. Press secretary Robert Gibbs accused the court of opening “the floodgates for corporations and special interests to pour money into elections — drowning out the voices of average Americans.”
The court ruled 5 to 4 in January that corporations and unions had a First Amendment right to use their general treasuries and profits to spend freely on political ads for and against specific candidates.
Roberts’s comments came Tuesday in a question-and-answer session with law students at the University of Alabama. He turned down a chance to address criticism of the decision, saying “I’ll have to let my opinion on that speak for itself.”
But later he was asked whether it was proper to use the State of the Union address to “chide” the court for its decision.
“First of all, anybody can criticize the Supreme Court without any qualm,” he said, adding that “some people, I think, have an obligation to criticize what we do, given their office, if they think we’ve done something wrong.”
He continued: “So I have no problems with that. On the other hand, there is the issue of the setting, the circumstances and the decorum. The image of having the members of one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering while the court — according the requirements of protocol — has to sit there expressionless, I think is very troubling.”
“I’m not sure why we’re there,” he added, which I assume we can read as his personal flipping o’ the bird in reply to next year’s invite. As for Obama’s Court-bashing, don’t expect that to stop with the SOTU: Public opinion is overwhelmingly on his side regarding the Citizens United decision. Which brings the total number of issues these days on which the public is overwhelmingly on his side to, I guess, one. Exit question: Safe to assume that only the liberal justices will be at the state of the union next year? Or will smilin’ Anthony Kennedy once again answer the bell for the left?
It’s not actually a unique event of oppression or suffering to have to sit and listen to a speech where someone criticizes you and you can’t respond that very moment (but are able, as Roberts just proved, to respond freely afterward). Even in the State of the Union Address, it’s completely customary for the President to criticize the Congress or the opposition party right to their faces, while members of his party stand and cheer vocally, and — as the reaction to Joe Wilson’s outburst demonstrated — “decorum” dictates that the targets of the criticism sit silently and not respond until later, once the speech is done. That’s how speeches work. Only Supreme Court Justices would depict their being subjected to such a mundane process as an act of grave unfairness (and, of course, Roberts’ comrade, Sam Alito, could not even bring himself to abide by that decorum).
What makes Roberts’ petty, self-absorbed grievance all the more striking is that this is what judges do all the time. It’s the essence of the judicial branch. Federal judges are basically absolute tyrants who rule over their courtroom and those in it with virtually no restraints. They can and do scold, criticize, berate, mock, humiliate and threaten anyone who appears before their little fiefdoms — parties, defendants, lawyers, witnesses, audience members — and not merely “decorum,” but the force of law (in the form of contempt citations or other penalties), compels the target to sit silently and not respond. In fact, lawyers can be, and have been, punished just for publicly criticizing a judge.
Paul Mirengoff at Powerline:
Chief Justice Roberts also said that the State of the Union address has “degenerated into a political pep rally” and added that, in light of that reality, “I’m not sure why we’re there.”
Over the past year, it has become painfully clear that President Obama has very little class. Worse, he has at times disgraced his office. The attack on the Supreme Court during the State of the Union speech was one of those times.
Dahlia Lithwick at Slate:
From President Jefferson to President Wilson, the “information” required by Article 2 was conveyed only in writing. One solution to all these bruised egos and hurt feelings is to return to a written State of the Union. Everyone can read it and emote freely while sitting on their toilets. Another option is for the justices to attend the State of the Union, with or without the black robes, and indulge in all the eye rolling, high-sticking, and grousing they would indulge in if, say, they were behind a lectern at the University of Alabama School of Law. The third option—the one exercised this year by Justices John Paul Stevens, Antonin Scalia, and Clarence Thomas—is not to come at all. For whatever it’s worth, however, this was hardly the first State of the Union to have “degenerated into a political pep rally.” Bill Clinton was booed during the 1994 State of the Union when he promised “only the wealthiest 1.2 percent of Americans will face higher income tax rates.” And Ronald Reagan’s 1987 State of the Union was described by Michael J. Casey as an effort to “fan the flames of the Cold War, to glorify the military, and to heap scorn on the poor.” The audience ate it up. No wonder Scalia and Stevens dropped this scene from their schedules. The justices who still attend must have some vested interest in being seen there.
Roberts’ word choice yesterday echoed almost perfectly the language used a few weeks ago by Justice Clarence Thomas, who offered up a lengthy defense of the Citizens United decision in a speech at Stetson University College of Law in Gulfport, Fla. Thomas explained that he had stopped attending the State of the Union because “it has become so partisan, and it’s very uncomfortable for a judge to sit there. … There’s a lot that you don’t hear on TV—the catcalls, the whooping and hollering and under-the-breath comments.”
But here’s the thing: The president, the Congress, and the Supreme Court are theoretically equals. Judges and those appearing before them are not.
In reality, though, the president and the Justices aren’t equals. The former presents himself as the leader of the country and gets to lecture everyone else. There are no comparable venues where the president comes and sits quietly while judges berate him.
It’s true that presidents criticize Congress in these speeches and outburts such as “You lie!” are considered poor form. But it’s not true that Congress is expected to sit there and take it; they cheer and jeer as a matter of course. The Justices, meanwhile, are supposed to present the illusion of impartiality.
Further, unlike the president and Congress, the Court is not an elected, political institution. They’re supposed to be impartial arbiters separate from politics. That’s a transparent fiction, of course, but one that must be maintained. If the Supreme Court is finally revealed to be nothing more than a band of partisans, their authority will vanish.
Finally, Roberts isn’t arguing that the Justices should get to shout “You lie!” when they’re insulted. He’s merely questioning whether they should attend political speeches where they’ll be scolded.
Around The Sphere 