Wednesday, March 10, 2010

It's Politics, Stupid, Er, Mr. Chief Justice

Fear not, America, we are not experiencing a constitutional crises as the three branches of government battle one another for political/ideology supremacy. It's simply a family spat in an arena which has evolved to severe polarization.

Supreme Court Chief Justice John Roberts told Alabama law students Tuesday the president's State of the Union address was a political pep rally. Big deal.

In his Jan. 27 speech, a constitutional requirement, Obama criticized the court's 5-4 decision that allowed unlimited spending by corporations in political campaigns. The controversial Citizens United decision "opened the floodgates for special interests" to overwhelm the electoral process, the president scolded.

Roberts, answering a student's question, considered the remarks an embarrassment of those justices attending the State of the Union.

"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," he said.

"It does cause me to think . . . why are we there?"

Three of the nine justices -- John Paul Stevens, Antonin Scalia and Clarence Thomas -- did not attend the session. It seems that Roberts and Samuel A. Alito Jr. -- who shook his head slightly and appeared to say, "Not true" -- wished they too had played hooky.

As for protocol, these annual presidential addresses tend to be laundry lists of their administration's agendas. That Obama chided another branch of government for what he considered a bad decision is nothing novel.

Here's the crazy thing. Both the court and the president were right.

I see nothing wrong with unlimited corporate financing of elections ruled in the Citizens United case. However, Congress must enact full disclosure rules so big business cannot hide behind the skirts of non-profit and political action committees.

I agree with Press Secretary Robert Gibbs that laws circumventing the decision now under consideration in Congress should counter balance "drowning out the voices of average Americans."

The consensus among progressives is Roberts is too thin-skinned for his own good. Glenn Greenwald, a  constitutional and civil rights litigator, writing for

Supreme Court Justices, in particular, have awesome, unrestrained power. They are guaranteed life tenure, have no authorities who can sanction them except under the most extreme circumstances, and, with the mere sweep of a pen, can radically alter the lives of huge numbers of people or even transform our political system (as five of them, including Roberts, just did, to some degree, in Citizens United). The very idea that it's terrribly 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.

If you believe judges are above political ideology and separated as a distinct bunch of gods and goddesses who do no evil or see no evil, you are sadly mistaken. Over time the high court has overturned so many of its own decisions an abacus would lose track.

When the Roberts remarks went public Tuesday, the first thought that entered my mind was Franklin D. Roosevelt's dumber drumbeats in all his 13 years as president.

Packing the Supreme Court.

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