The public spat between the heads of two branches of the federal government, President Barack Obama and John Roberts, chief judge of the Supreme Court, refuses to go away. It began with the court’s overthrow of parts of the 2002 McCain-Feingold campaign finance law. It heated up with the president’s unusual — and inappropriate — public rebuke of the court.
President Obama, near the end of his State of the Union address, said: “With all due deference to the separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests — including foreign corporations — to spend without limit in our elections. I don’t think American elections should be bankrolled by America’s most powerful interests or, worse, by foreign entities. They should be decided by the American people. And I’d urge Democrats and Republicans to pass a bill that helps to correct some of these problems.”
Seven weeks later, Justice Roberts said that anyone was free to criticize the court, and some have an obligation to do so because of their positions. “So I have no problem 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 to the requirements of protocol — has to sit there expressionless, I think is very troubling.” He added, “To the extent it has degenerated into a political pep rally, I’m not sure why we’re there.”
He’s right, and if the justices no longer attend the largely ceremonial State of the Union address something will be lost.
While President Obama spoke of election spending without limit, the court’s decision reopened the way for indirect spending or “soft money” for issue advocacy. It left standing a 1907 law prohibiting corporations from giving money directly to candidates. So Justice Samuel Alito was right when he appeared to mouth the words “not true” as the president was speaking. And hardly “a century of law” was involved.
Supreme Courts have undergone presidential reprimands before. Abraham Lincoln assailed Chief Justice Roger B. Taney over the pro-slavery Dred Scott decision. Franklin D. Roosevelt tried to pack the court headed by Charles Evans Hughes, which had thrown out part of his New Deal.
In this case, the conservative high court majority tackled a “political question,” considered off-limits in earlier times. This new role was epitomized by its 5-4 decision interrupting the hairline 2000 election.
By ruling that corporations have certain free speech rights previously enjoyed only by individuals, the court set a potentially dangerous precedent. But the president squandered an opportunity to discuss the matter with the American public by choosing the wrong place, and the wrong time to raise it. Embarrassing or lecturing the justices is not the way toward resolution of this difficult issue.