The unfathomable Supreme Court penchant for talking politics.

The law, lawyers, and the court.
March 16 2010 6:37 PM

Cross Talk

The unfathomable Supreme Court penchant for talking politics.

Read Emily Bazelon on Ginni Thomas' new Tea Party group.

Supreme Court justices. Click image to expand.
The justices of the Supreme Court

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.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

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."

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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.

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