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. Follow her on Twitter.

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.

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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.

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."

"One of the consequences," Thomas added, "is now the court becomes part of the conversation, if you want to call it that, in the speeches." But with all due respect to Justice Thomas, the court already is "part of the conversation." It's one of three co-equal branches of government, save for the fact that this one branch has the power, as it did in Citizens United, to strike down longstanding, duly enacted laws. The court is in a constant political conversation with the other two branches. It's just that some of these conversations happen directly and some happen through a tortured game of judicial telephone.

Nobody knows better than the chief justice that partisan politics has infected the national conversation about the court. According to a CNN report today, a colleague of Roberts says, "The incident at the State of the Union only reinforced [Roberts'] concern the courts have become a political football. … He's tried—publicly and privately—to reach across the branches and sought to reinforce a level of mutual respect and understanding for their work. He felt like those [Obama] remarks really hurt what the court is perceived to be doing."

So the real question today isn't about judicial decorum and presidential propriety at all. The question is whether the Chief Justice genuinely believes that the best way to heal the partisan rift over the court is by lobbing long-distance partisan attacks at Congress and the president.

I score this one to the president and Justice Alito. At least they had the courage to insult one another face-to-face. But whether the Chief Justice cares to admit it to himself or not, a partisan attack on the two other branches of government is still a partisan attack on the two other branches of government. Even when it's whispered in Alabama.

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