Roberts Not Sure Why Justices at State of Union Address
Chief Justice John Roberts says he’s not sure why the Supreme Court still attends the State of the Union address, indicating that perhaps it was time for that tradition to end.
U.S. Supreme Court Chief Justice John Roberts said Tuesday the scene at President Obama’s State of the Union address was “very troubling” and the annual speech has “degenerated to a political pep rally.”
Obama chided the court, with the justices seated before him in their black robes, for its decision on a campaign finance case.
Responding to a University of Alabama law student’s question, Roberts said anyone was free to criticize the court, and some have an obligation to do so because of their positions. “So I have no problems with that,” he said. “On the other hand, 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.”
Breaking from tradition, Obama criticized the court’s decision that allows corporations and unions to freely spend money to run political ads for or against specific candidates. “With all due deference to the separation of powers the Supreme Court reversed a century of law to open the floodgates for special interests — including foreign corporations — to spend without limit in our elections,” Obama said in January. Justice Samuel Alito was the only justice to respond at the time, shaking his head and mouthing the words “not true” as Obama continued.
Roberts told the students he wonders whether justices should attend the speeches. “I’m not sure why we’re there,” said Roberts, a Republican nominee who joined the court in 2005.
Justice Antonin Scalia once said he no longer goes to the annual speech because the justices “sit there like bumps on a log” in an otherwise highly partisan atmosphere. Six of the nine justices attended Obama’s address.
Roberts and Scalia are right. It’s not so much that Obama’s dig at the Court was improper but that the nature of the address has gradually evolved over the years into a more partisan, overtly political affair. Perhaps that’s to be expected, since American politics has similarly changed. But it may well be time for the Justices to stop attending, lending the impression that the SOTU is some sort of national unity moment. Ditto, incidentally, the Joint Chiefs.
UPDATE: Via the comments, I see that Glenn Greenwald has an interesting alternative viewpoint:
It’s not actually a unique event of oppression or suffering to have to sit and listen to a speech where someone criticizes you and you can’t respond that very moment (but are able, as Roberts just proved, to respond freely afterward). Even in the State of the Union Address, it’s completely customary for the President to criticize the Congress or the opposition party right to their faces, while members of his party stand and cheer vocally, and — as the reaction to Joe Wilson’s outburst demonstrated — “decorum” dictates that the targets of the criticism sit silently and not respond until later, once the speech is done. That’s how speeches work. Only Supreme Court Justices would depict their being subjected to such a mundane process as an act of grave unfairness (and, of course, Roberts’ comrade, Sam Alito, could not even bring himself to abide by that decorum).
What makes Roberts’ petty, self-absorbed grievance all the more striking is that this is what judges do all the time. It’s the essence of the judicial branch. Federal judges are basically absolute tyrants who rule over their courtroom and those in it with virtually no restraints. They can and do scold, criticize, berate, mock, humiliate and threaten anyone who appears before their little fiefdoms — parties, defendants, lawyers, witnesses, audience members — and not merely “decorum,” but the force of law (in the form of contempt citations or other penalties), compels the target to sit silently and not respond. In fact, lawyers can be, and have been, punished just for publicly criticizing a judge.
The very idea that it’s terrriby wrong, uncouth, and “very troubling” for the President to criticize one of their most significant judicial decisions in a speech while in their majestic presence — not threaten them, or have them arrested, or incite violence against them, but disagree with their conclusions and call for Congressional remedies (as Art. II, Sec. 3 of the Constitution requires) — approaches pathological levels of vanity and entitlement.
All fair points.
But here’s the thing: The president, the Congress, and the Supreme Court are theoretically equals. Judges and those appearing before them are not.
In reality, though, the president and the Justices aren’t equals. The former presents himself as the leader of the country and gets to lecture everyone else. There are no comparable venues where the president comes and sits quietly while judges berate him.
It’s true that presidents criticize Congress in these speeches and outburts such as “You lie!” are considered poor form. But it’s not true that Congress is expected to sit there and take it; they cheer and jeer as a matter of course. The Justices, meanwhile, are supposed to present the illusion of impartiality.
Further, unlike the president and Congress, the Court is not an elected, political institution. They’re supposed to be impartial arbiters separate from politics. That’s a transparent fiction, of course, but one that must be maintained. If the Supreme Court is finally revealed to be nothing more than a band of partisans, their authority will vanish.
Finally, Roberts isn’t arguing that the Justices should get to shout “You lie!” when they’re insulted. He’s merely questioning whether they should attend political speeches where they’ll be scolded.