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.

Voters Oppose Court Ruling on Campaign Finance

Voters overwhelmingly oppose the Supreme Court's recent decision in Citizen's United that invalidated bans on election spending by corporations. Although the Supreme Court does not typically issue rulings the differ dramatically from public opinion, a Washington Post-ABC News poll finds that 80% of voters disagree with the ruling.

The high level of public opposition likely encouraged President Obama to criticize the decision during his recent State of the Union Address. Justice Alito, one of the conservative Justices who favored lifting the spending bans, visibly disapproved of Obama's criticism.

The poll also finds that voters in both major parties disagree with the rulings. 85% of Democrats, 76% of Republicans, and 81% of Independents oppose the ruling. Despite the widespread opposition among voters, leading Republicans in Congress vow to oppose any legislative efforts to erect additional burdens on corporate spending (such as disclosure requirements, limits on bailout recipients, etc.). Furthermore, Senate Minority Leader Mitch McConnell praised the ruling as a victory for free speech.

Run: Facts! Conservative Bloggers Have a "Huh?" Moment When President Obama Proclaims He Cut Taxes

Media Matters has an entertaining post that examines the disbelief among conservative bloggers for Fox News and the Washington Times, who could not grip the fact that Obama has advocated and secured legislation lowering taxes:

In response to President Barack Obama's State of the Union assertion that "we cut taxes," live bloggers for FoxNews.com and WashingtonTimes.com reacted with incredulity. However, Obama did cut taxes for most Americans: the American Recovery and Reinvestment Act of 2009 included $288 billion in tax relief.

For more information, visit Media Matters.

Justice Alito Visibly Reacts to Obama's Criticism of the Supreme Court

During the State of the Union Address, President Obama criticized the Supreme Court's recent 5-4 decision in Citizen United. That case invalidated the restraints on corporate political spending commanded by McCain-Feingold legislation. The decision has led to harsh criticism among political and legal commentators.

President Obama had already criticized the ruling, but he used the platform of the SOTUA to reiterate his opposition. Obama said that the ruling would "open the floodgates for special interests — including foreign companies — to spend without limit in our elections." President Obama's criticism is in-line with the arguments of many legal critics and with the position of the four liberal dissenting justices.

Alito Was Visibly Upset
Justice Alto winced when President Obama criticized the ruling. Some observers have said that he also mouthed the words "not true" in response to President Obama's critique. The rest of the justices were stone-faced, as usual, during the entire speech.

Presidents Have Criticized the Court Before
Coincidentally, during my Constitutional Law class earlier this week, we discussed political constraints on the Supreme Court -- including criticism of the Court by members of Congress and by the President. Compared with other historical moments, Obama's criticism was somewhat mild.

FDR probably offered the most caustic criticism of the Court and its rulings. Jefferson also harshly criticized the Court, but a lot of his criticism reflected his contempt for Chief Justice John Marshall. Lincoln famously criticized the Dred Scot decision, and President Jackson disagreed with the Court on the constitutionality of a federally chartered bank.

State of the Union: 2010

Here is the prepared text (not an official transcript): SOTUA

It's about to start. What do you think? Post in the comments section.

Can Obama Re-Inspire Voters?

During the presidential campaign, Barack Obama seemingly could do nothing wrong. The media and his supporters denounced his reporters as "more of the same." Whenever he received new endorsements, they denounced his competitors. And he won the election with record voter turnout.

Those days seem like a distant past. Much of the glow surrounding President Obama has diminished. The economy remains sluggish. The political left feels that Obama has betrayed them. The media dissect everything he does, rather than offering effusive praise. And conservatives feel embolden by Republican victories in Massachusetts and New Jersey.

New York Times columnist Bob Herbert -- one of Obama's strongest supporters -- argues that the president suffers from a "credibility gap." Herbert contends that Obama's inconsistencies on major policy issues could fuel additional voter discontent and confusion:

Mr. Obama may be personally very appealing, but he has positioned himself all over the political map: the anti-Iraq war candidate who escalated the war in Afghanistan; the opponent of health insurance mandates who made a mandate to buy insurance the centerpiece of his plan; the president who stocked his administration with Wall Street insiders and went to the mat for the banks and big corporations, but who is now trying to present himself as a born-again populist.

Mr. Obama is in danger of being perceived as someone whose rhetoric, however skillful, cannot always be trusted. He is creating a credibility gap for himself, and if it widens much more he won’t be able to close it.

Ironically, many media personalities and voters who supported Obama's candidacy said that they found his "non-ideological" style refreshing. Early this year, many media commentators, responding to liberal anger, praised Obama as a "pragmatist" and condemned progressives as ideologues.

I am inclined to agree with Herbert who finds Obama's lack of a firm commitment to issues a problem for him. By seeking to appease all sides and (especially) to abandon the liberal base of the Democratic Party, Obama comes across as a weak leader. With so much on the line, tonight's State of the Union Address should prove interesting.