Read Emily Bazelon on Ginni Thomas' new Tea Party group.
You know things have gone ugly between the president and the Supreme Court when we're all talking about 1937 again. That was when tensions between President Franklin D. Roosevelt and Chief Justice Charles Evan Hughes led FDR to call out the court in his State of the Union speech and then, a month later, threaten to pack the court with liberal justices. Nobody really thinks President Obama wants to pack the Roberts court. Maybe just punch it in the nose. And the Roberts court hasn't struck down Obama's progressive legislation. Yet. The real reason everyone is talking about 1937 is that, when the executive and judicial branches clash openly like this, the court stops looking all lofty and deliberative and begins to look political and vulnerable. Fair or not, it's usually the court that is hurt by these skirmishes, not the president.
In response to the latest dustup between the chief justice and the president, Jeff Toobin writes that the court is political, and it's just as well that it's all hanging out there now for the public to see. Jeff Shesol, author of the forthcoming Supreme Power: Franklin Roosevelt vs. the Supreme Court,is less sanguine, but his concern is the president's reputation. He suggests that like FDR's in the 1930s, "arguments with the Supreme Court are, as one magazine put it in 1936, 'packed with the most deadly dynamite,' for the chief executive."
Me, I don't quite see the downside for Obama in attacking the Supreme Court. Polls show that 80 percent of the country hated the Citizens United decision, overturning several precedents and some major campaign finance law when it first came down and they still hate the ruling six weeks later. It was surely bad manners for the president to attack the court as the justices sat, quietly napping, before him at the State of the Union. But I don't see where it was bad politics. Nor was it especially bad politics for the justices to fight back: Samuel Alito through enraged pantomime, John Roberts through time-delayed umbrage. But was it bad justice-ing?
The president is a political actor. When he condemned the result in Citizens United, he made a political statement about what he saw as a political act for purely political reasons. That's what presidents do. It's not Obama's responsibility to worry about attacks on judicial independence. It's his responsibility to govern. For the justices, the choice to enter the political fray is far more complicated. Their power and authority derive from the claim that they are anything but political actors. Today, more than ever, they benefit from preserving the illusion that they are neutral umpires in every single aspect of their lives ("That meatloaf was a little high and inside tonight, Honey!"). Unreasonable or not, it's their job to sit impassively while the world hurls sardine tins at them.
This means that the justices live an impossible double-life, with one foot in the world of neutral, pristine-seeming legal rules and the other in the rough-and-tumble of politics. For the most part, the court is cloistered among its page citations and bench memos. But every once in a while the justices explode into the brutish, AM-radio world of Democrats vs. Republicans—whether it's Bush v. Gore, Citizens United,the State of the Union address, or a confirmation hearing. Didn't you recognize that blinking, baffled look they presented at the State of the Union? It's the look they sport for their confirmation hearings and the annual court photograph. These are the moments at which the court must attempt to do the impossible: Paint itself as oblivious to and unaffected by politics, even while politics is bursting out all around it.
If the justices were serious about being above politics, they would confine their public statements to the opinions they write and their public remarks to oral argument. But they want to be of the world, and so they occasionally venture out with books and articles and interviews and speeches and unrehearsed answers to student questions. These are the moments in which the robes and the umpire masks come off, and we get to see the justices for who they really are.
Some of the justices draw curious personal lines between where law stops and ideology starts, and others don't bother to draw lines at all. Clarence Thomas, for instance, doesn't try to paper over his ideological convictions with legal theory. His autobiography is full of political attacks on his opponents. Former Justice Sandra Day O'Connor worked hard as a justice to keep her political views private; that's why she raised eyebrows during the 2000 election when she reportedly blurted out, "This is terrible" when the election was prematurely called for Al Gore. (She evidently wanted a Republican to name her successor.) Some of the justices eschew political speeches but then open up to interviewers: So when Justice Ruth Bader Ginsburg didn't like the way her male colleagues handled a strip-search case last year, she didn't wait around to express her displeasure in a judicial opinion. She took her complaints directly to Joan Biskupic at USA Today. Other justices, like Antonin Scalia, avoid the political interviews but give rather pointed speeches. And then there's the revealing body language: When Samuel Alito skipped President Obama's courtesy visit to the court last year, although he was in the building that morning, the Los Angeles Times speculated that Alito totes around a grudge, having once admitted that "when walking on Capitol Hill, Alito has said, he crosses to the far side of the street whenever he nears the Senate Office Building."
The justices don't decide collectively just how much paddling around in politics the court as a whole can tolerate. Some of them boycott the State of the Union, and others attend. Some discuss cases in their public appearances, and others try not to. Another round of chirping erupted this past weekend when it was revealed that Clarence Thomas' wife, Virginia, has launched a new lobbying and political-organizing group to, according to the group's Web site, "fight for liberty and against the liberal Washington agenda." Assuming they adhere to the ethical strictures, Ginni Thomas is perfectly entitled to publicly associate herself with the Tea Party movement or Rush Limbaugh or the proposition that America is fighting "tyranny" from within. Whether that association diminishes the appearance of a neutral, independent judiciary is for she and her husband to decide.
Perhaps the real lesson for the justices here is that no random act of partisan politics by any member of the court will ever go undetected again. The last few weeks happened to unearth a perfect storm of such activities, from the TV cameras that captured Justice Alito's reaction to Obama's speech, to the ways in which the Chief Justice's remarks and news of Virginia Thomas' nonprofit have instantly gone viral. This type of revelation will come more and more frequently, and the justices must understand that nothing they do or say in public will go unnoticed or uninterpreted. It used to be that what happened within the walls of the Supreme Court building was semi-secret, and a justice's personal politics could remain a total secret. Today—with best-selling books about court politics and justices ever more willing to speak out—that dynamic is reversing itself. Starting with the confirmation process, political gossip is louder and more persuasive than plodding jurisprudence. Unless the justices want to return to speaking only through their judicial opinions, they will have to learn to live with the fact that their political action is always big news.
There are only nine people responsible for this situation, although they may be inclined to blame the media, as opposed to themselves. It's always going to be a bigger story when a Supreme Court justice lashes out at the president than vice versa, because the public still holds the court to a standard of political neutrality. By and large, the justices benefit from that public presumption more than they suffer for it. But between a polarized media and a polarized court, the justices are at something of a crossroads in public confidence. They can certainly go ahead and criticize the elected branches, write tell-alls, or give their spouses a green light to align themselves with the Tea Party movement. They can even claim to be above politics as they do all of the above. But they can't get away with insisting it's the rest of us who are undermining the dignity and independence of the court. The days of claiming that politics isn't politics just because a justice is doing it may be behind us.