The Audacity of the Supremes

In his State of the Union address, January 27, 2010, President Obama commented on the Supreme Court's decision in the campaign finance case.

“Last week, the Supreme Court reversed a century of law to open the floodgates for special interests -- including foreign companies -- to spend without limit in our elections,” Obama said tonight. “Well, I don’t think American elections should be bankrolled by America’s most powerful interests, and worse, by foreign entities. They should be decided by the American people, and that’s why I’m urging Democrats and Republicans to pass a bill that helps to right this wrong.”

During the President's remarks, Justice Samuel A. Alito Jr. responded by shaking his head and mouthing the words "not true."

Recently, Justice John G. Roberts Jr. commented that he found the President's remarks to be "very troubling."

"The image of having the members of one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering," Roberts told University of Alabama law students, "while the court -- according to the requirements of protocol -- has to sit there expressionless, I think is very troubling."

Roberts, himself, made it clear where he stood on Tuesday, telling a crowd at the University of Alabama that the president had "denigrated" the State of the Union into "a political pep rally."

Criticism of the President's remarks not only come from a few Supreme Court justices but also from right-wing pundits as well as the media. The news media, taking the cue from the Justices, are claiming that Obama is "breaking from tradition" or that Obama "stirred the pot" for criticizing the Supreme Court.

But is the President breaking from a tradition of 'no comment' when it comes to Supreme Court decisions? And what is the protocol of the Supreme Court regarding political comments?

In the JURIST, William G. Ross of Cumberland School of law, Samford University, finds the Presidents comments to be acceptable. Also President Obama was not the first president to comment on or criticize the Supreme Court in a State of the Union address.

First, it is important to point out that Obama criticized only one judicial decision, Citizens United v. Federal Election Commission. He did not attack the Court itself or impugn the good faith or motives of any individual justice. Although he objected to the manner in which the Court exercised its power of judicial review in a particular case, he did not express any objection to the Court’s power of judicial review or even remotely imply that he supported any kind of curtailment of the Court’s institutional powers.

Theodore Roosevelt, however, holds the record for criticism of courts in State of the Union addresses. In his 1906 and 1908 State of the Union addresses, Roosevelt made extensive and stinging remarks about state and federal judges who invalidated economic regulatory legislation and who issued injunctions against the legitimate activities of labor unions.

Using this issue to spin a negative scenario, the right-wing media has accused President Obama of "intimidation." There is evidence however, that Obama's comments were not unprecedented!

In fact, Obama's comments were not "unprecedented"; Presidents Ronald Reagan and George W. Bush have previously used the State of the Union to criticize judicial actions, including those of the Supreme Court.

Reagan directly attacked the Supreme Court for Roe v. Wade. In his 1984 State of the Union address, Reagan attacked the 1973 Supreme Court ruling in Roe v. Wade, during a discussion on abortion:

And while I'm on this subject, each day your Members observe a 200-year-old tradition meant to signify America is one nation under God. I must ask: If you can begin your day with a member of the clergy standing right here leading you in prayer, then why can't freedom to acknowledge God be enjoyed again by children in every schoolroom across this land?

[...]

During our first 3 years, we have joined bipartisan efforts to restore protection of the law to unborn children. Now, I know this issue is very controversial. But unless and until it can be proven that an unborn child is not a living human being, can we justify assuming without proof that it isn't? No one has yet offered such proof; indeed, all the evidence is to the contrary. We should rise above bitterness and reproach, and if Americans could come together in a spirit of understanding and helping, then we could find positive solutions to the tragedy of abortion.

Bush condemned "activist judges" who are "redefining marriage by court order." In his 2004 State of the Union address, Bush criticized "activist judges" who, according to him, were "redefining marriage by court order":

Activist judges, however, have begun redefining marriage by court order, without regard for the will of the people and their elected representatives. On an issue of such great consequence, the people's voice must be heard. If judges insist on forcing their arbitrary will upon the people, the only alternative left to the people would be the constitutional process. Our Nation must defend the sanctity of marriage.

The outcome of this debate is important, and so is the way we conduct it. The same moral tradition that defines marriage also teaches that each individual has dignity and value in God's sight.

Could it be that the behavior of the Supreme Court justices is unprecedented?

During the nomination process, both Justice Roberts and Justice Alito emphatically denied that they were "activist judges." But now Roberts thinks that the justices should be able to voice a view.

"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."

And Alito shakes his head at the words of a President. It doesn't matter if the President is a Republican or a Democrat. There is a reason why Supreme Court justices should not get involved politically.

What's most disturbing here is the increasing trend of right-wing Justices inserting themselves ever more aggressively into overtly political disputes in a way that seriously undermines their claims of apolitical objectivity. Antonin Scalia goes hunting with Dick Cheney, dubiously refuses to recuse himself from a lawsuit challenging the legality of Cheney's actions, and then rules in Cheney's favor. Scalia has an increasing tendency to make highly politicized comments about purely political conflicts, most recently defending torture in an interview with 60 Minutes. As part of Clarence Thomas' promotional efforts to sell his book, he spent substantial time building his conservative icon status with the furthest right-wing media elements -- even parading himself around on Rush Limbaugh's radio program -- and turned himself into the food fight of the week between Democrats and Republicans.

It was clear from Sam Alito's confirmation hearing and his record of appellate opinions that he is a dogmatic, state-revering, right-wing judge. But last night, he unmasked himself as a politicized and intemperate Republican as well. Much of the public will view his future "judicial" and "legal" conclusions -- and those of his fellow Court members -- with an even greater degree of cynicism. And justifiably so. Whatever impulses led him to behave that way last night, they have nothing to do with sober judicial reasoning or apolitical restraint.

It is time to have justices who are not activist judges.