John Roberts' nonpartisan attack on presidential partisanship.

John Roberts' nonpartisan attack on presidential partisanship.

John Roberts' nonpartisan attack on presidential partisanship.

The law, lawyers, and the court.
March 10 2010 5:40 PM

Et Tu, SOTU?

John Roberts' nonpartisan attack on presidential partisanship.

John Roberts. Click image to expand.
John Roberts

Chief Justice John Roberts is hopping mad at President Barack Obama for criticizing the Supreme Court during his January State of the Union speech. In fact, he's so mad, he had to fly all the way out to the University of Alabama School of Law to chide the president for his lack of decorum. See, now, that's the decorous way to criticize somebody. Via the Associated Press. From Alabama.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate, and hosts the podcast Amicus.

This past January, Obama gave a State of the Union speech, as dictated by Article 2, Section 3 of the Constitution: "He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient." What riled Roberts so were the remarks Obama directed at the high court's 5-4 decision in Citizens United v. Federal Election Commission, handed down just a week earlier, giving corporations a free-speech right to spend unlimited money on election ads.

The president, six of the nine robed justices directly in front of him, said:

With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests—including foreign corporations—to spend without limit in our elections. I don't think American elections should be bankrolled by America's most powerful interests, or worse, by foreign entities. They should be decided by the American people. And I'd urge Democrats and Republicans to pass a bill that helps to correct some of these problems.


You may also recall that a horrified Justice Samuel Alito mouthed the words "that's not true" following Obama's broadside. Then everyone went a little crazy for a day or two until most of us calmed down enough to realize that the president has every right to criticize the court, and the justices have every right to appear annoyed.

But the chief justice has evidently spent the last several weeks stewing, and, given the need for the court to stay above the political and ideological fray, he used a speech to law students in Alabama to call out the president. While conceding that it is permissible—even necessary—to criticize the court, Roberts complained, "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."

The chief justice added, ""To the extent the State of the Union has degenerated into a political pep rally, I'm not sure why we are there." And just to be sure he was hitting for the cycle, the chief took a whack at the Senate as well. Speaking of the judicial confirmation process, he observed, "I think the process is broken down" and remarked that senators have made the hearings all about themselves: "The process is a vehicle for them to make statements about what is important to them."

Just to review, then: The chief justice doesn't much like the confirmation process and is bothered by the lack of decorum involved in being forced to sit like a fruit bowl through the State of the Union speech yet prevented, by decorum, from giving facial expressions, all while "surrounded" by a cheering, hollering mob. Those sound like political criticisms to me. While, at first blush, the jeering, menacing mob in fact sounds rather ominous, at second blush, it's probably a good thing the justices spend most of their lives in small dark rooms.