To listen to John Roberts, you’d think that mobs of pitchfork-waving Democrats had accosted a handful of trembling justices and demanded that they reverse themselves on the spot — or else. Speaking to law students at the University of Alabama, Roberts said anyone is free to criticize the court. Except, apparently, not to the justices’ faces.
“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.”
But why? Surely Roberts doesn’t think that the justices are about to be intimidated by some congressional applause — or even a law professor-turned-president criticizing their ruling. The State of the Union address is the occasion to discuss the most important issues facing the country. The Supreme Court ruling that President Obama said “reversed a century of law” and threatened to “open the floodgates for special interests … to spend without limit in our elections” certainly fits that bill. It was appropriate for the president to use the occasion to call on Congress to craft a legislative response to the decision — even in the presence of its authors.
Earlier, explaining why he is a no-show at the address, Justice Clarence Thomas cited the controversy over Justice Samuel Alito’s head-shaking response to Obama’s remarks. “One of the consequences is now the court becomes part of the conversation, if you want to call it that,” Thomas said. Good: the court is and should be part of the conversation. Ronald Reagan, albeit in a less confrontational way, criticized the court’s abortion-rights rulings in several State of the Union addresses.
“To those who say this violates a woman’s right to control of her own body: Can they deny that now medical evidence confirms the unborn child is a living human being entitled to life, liberty and the pursuit of happiness?” he said in 1988 — with members of the court that disagreed with him sitting right there. For good measure, Reagan took a shot at the court’s rulings on school prayer and called for a constitutional amendment on that subject, as well as on abortion.
The State of the Union is, as Roberts sniffed, part “political pep rally” — with the opposing teams each participating in their rival cheers. But it is also a ceremonial, even magisterial occasion of state, attended by members of the diplomatic corps and the joint chiefs of staff. It is fine for some members of the audience to cheer and incumbent on others to keep a poker face.
In his forthcoming book, “Supreme Power: Franklin Roosevelt vs. the Supreme Court,” former Bill Clinton speechwriter Jeff Shesol describes how Roosevelt toned down the confrontational language that appeared in earlier drafts but still used his 1937 State of the Union address to take the court to task for blocking New Deal legislation. “The judicial branch also is asked by the people to do its part in making democracy successful,” Roosevelt said. “The process of our democracy must not be imperiled by the denial of essential powers of free government.”
Roosevelt, Shesol writes, was disappointed to look up and see that none of the justices were present. Apparently tipped off, or fearing that they would be the target of presidential criticism, they stayed away — as Roberts might next year.
That would, I think, be a mistake. If conservative justices boycott a Democratic president’s State of the Union address, who, then, will be politicizing the court?
Ruth Marcus’ e-mail address is marcusr(at symbol)washpost.com.
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