Wednesday, March 10, 2010

Chief Justice Roberts Is Troubled -- But Should He Be?

Chief Justice Roberts says that the venue President Obama chose to criticize the Supreme Court (during the State of the Union Address) was troubling. Roberts expressed his views during a forum at the University of Alabama Law School. A student asked Roberts to address Obama's criticism of the Court during the SOTUA. Roberts said that President Obama had the right to criticize the Court. Roberts, however, objected to criticism within the particular forum:
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.
Although I understand that an individual member of the Court could feel some discomfort facing criticism within that setting, Roberts' statement is misplaced for a few reasons.

FIRST, President Obama criticized the Supreme Court -- not Chief Justice Roberts (or any other justice) in his or her individual or personal capacity. Similarly, President Obama, speaking directly to Congress, also criticized Congress as an institution (particularly, the Senate). If he had singled out one member of Congress for condemnation, then that would probably have a "troubling" impact. But Obama criticized both Congress and the Supreme Court as institutions, and this is indisputably part of his role as the Executive.

SECOND, Presidents have made far more dramatic -- and troubling -- critiques of the Court. After delivering numerous speeches criticizing the Court, FDR infamously proposed to "pack" the Court with several new justices in order to achieve the results he wanted in litigation. Thomas Jefferson also frequently criticized the Supreme Court -- at one point, accusing it of being "jealous" of Congress and the President. When Jefferson first took office, he and the Democratic-Republican Congress enacted the Judiciary Act of 1802 which suspended the Court for a year and immunized from judicial review their decision to repeal the Judiciary Act of 1801. Next to these historical actions, Obama's few words about the Court during the SOTUA are innocuous.

THIRD, at least one other President has utilized the SOTUA to criticize the Supreme Court. As Yale Law Professor Jack Balkin has argued, FDR devoted almost 1/4 of his 1937 SOTUA to criticizing the Court.

Bottom Line
It is important to analyze Obama's few seconds of commentary about the Court from an historical perspective. Viewed in the context of history, Roberts is troubled over a tradition of presidential criticism of the Court. For that reason, Roberts' annoyance is misplaced. The Court has never been above critique in any particular venue -- and there are many good reasons for preserving this tradition. That Roberts has voiced his displeasure, joining Justice Alito who grimaced during the SOTUA, proves that in spite of the criticism, the Court remains independent.

UPDATE: Salon's Glenn Greenwald has responded to Roberts. Greenwald is a lot less diplomatic than I am. His analysis, though, is solid!

See: The majestic petulance of John Roberts.

UPDATE II: GWU Law Professor Jonathon Turley has an additional point. Roberts complained that "protocol" requires that the justices remain emotionless during the talk. This made Obama's criticism "troubling." But, Alito did not remain emotionless; Roberts, however, did not criticize -- or apparently even acknowledge -- Alito's grimace.

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