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Justice Roberts Stokes State of the Union Controversy: A Hard Lesson in Why Elections Matter

The arch-conservative University of Alabama Law School

The arch-conservative University of Alabama Law School, with an active Federalist Society chapter, was the perfectly sympathetic setting last week for what most American legal experts would consider shockingly inappropriate political remarks by the chief justice of the United States Supreme Court.

While the University of Alabama national championship football team was being honored at the White House by President Barack Obama last week, Chief Justice John Roberts traveled to Tuscaloosa to deliver an incredibly boring academic speech, which wasn’t the point of his visit. Not one news organization quoted from it in their report.

Roberts knew full well he would be asked about the still-stinging controversy between the conservative wing of the court and the president over a recent ruling favoring corporations in funding political campaigns, and remarks from the president during his first State of the Union address. And he knew he would have a sympathetic crowd with no protesters, since Alabama is a conservative state about as deeply enmeshed in the corrupt politicization of justice as any in the country.

The nation’s high court issued a 5 to 4 ruling in January that overturned a century of precedent on the ability of Congress to limit corporate contributions to political campaigns, a precedent that dates to the time of muckraking journalists and President Theodore Roosevelt’s Trust Busting days against the powerful influence of early monopoly corporations such as Standard Oil.

The Roberts court, or really the Bush court since President George W. Bush appointed two of the most conservative members, including Roberts, ruled that corporations and unions have a First Amendment right to use their general treasuries and profits to spend freely on political ads for and against specific candidates. That ruling overturned previous Supreme Court precedents and well-established federal law.

While the decision was hailed by conservatives, libertarians and a few liberals as a victory for free political speech, Obama denounced it in his State of the Union address, saying it overturned a century of established legal precedent and would lead to the bankrolling of elections “by America’s most powerful interests.”

It was a powerful moment when the president said it looking down at the members of the Supreme Court, required by tradition to be present for the address, sitting right in the front row of the House chamber.

But the controversy didn’t end there. Justice Samuel A. Alito Jr., another Bush appointee, violated judicial custom, according to experts, by silently mouthing “not true” when the president made the remark about it overturning a century of precedent.

When Roberts was asked about the moment by a law student at Alabama, he said anybody can criticize the Supreme Court “without any qualm.

“Some people, I think, have an obligation to criticize what we do, given their office,” he said, “if they think we’ve done something wrong.”

But Roberts didn’t stop there.

“On the other hand, there is the issue of the setting, the circumstances and the decorum,” he said. “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 to the requirements of protocol – has to sit there expressionless, I think is very troubling. To the extent the State of the Union has degenerated into a political pep rally, I’m not sure why we’re there.”

The remarks indicate Roberts may now agree with arch-conservative Clarence Thomas, the justice who told a Florida law school audience last month that the controversy reinforced his decision to skip the State of the Union address.

“One of the consequences is now the court becomes part of the conversation, if you want to call it that,” Thomas said. “It’s just an example of why I don’t go.”

According to protocol, one member of the court is required to skip the address in the event of an act of war or terrorism when all three branches of government are together in one place.

The White House didn’t waste any time striking back at Roberts’ remarks.

“What is troubling is that this decision opened the floodgates for corporations and special interests to pour money into elections – drowning out the voices of average Americans,” White House press secretary Robert Gibbs said in a statement. “The president has long been committed to reducing the undue influence of special interests and their lobbyists over government. That is why he spoke out to condemn the decision.”

Considering Roberts’ political background, it really is no surprise that he would orchestrate such a pro-corporate ruling, which is clearly one of the reasons Bush chose him for the court.

During the late 1990’s, while working in private practice for the firm of Hogan & Hartson, Roberts served as a member of the steering committee of the Washington, DC, chapter of the conservative Federalist Society, a not-so-secret legal fraternity that heavily influenced many of the appointments made by the Bush administration.

Roberts argued 39 cases for the government before the Supreme Court during that time, prevailing in 25 of them, including a couple of cases where he represented coal companies against unions and injured workers. In one of his few dissents, Roberts openly made fun of a California toad in an environmental case, arguing that the Commerce Clause of the Constitution did not permit the government to regulate activity affecting what he called “a hapless toad” that “for reasons of its own, lives its entire life in California.”

Of course, Roberts had long been a toady for the Bush family, working for George Herbert Walker Bush when he was vice president under Ronald Reagan in the 1980’s. Then in 2000, during the hanging chad controversy that landed Bush before the Supreme Court, the court that handed Bush the election on one of the most controversial decisions in American legal history, Roberts traveled to Tallahassee, Florida, to advise then-Gov. Jeb Bush on what to do during the Florida election recount.

The entire incident should prove once and for all that elections matter. The working people of this country, especially in the South, need to wake up and start voting in their own self-interest, and not on hot button “wedge” issues. Abortion and gay marriage and the like are nothing but distractions from the real issues facing the federal government in making this democracy work, like fixing the economy by passing national health care reform – and limiting the influence of giant corporations on the political process.

Supreme Court Justice Samuel Alito frowned and shook his head as President Barack Obama spoke to Congress, mouthing the words “not true.” Obama had taken the unusual step of scolding the high court in his State of the Union address on January 27.

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