Deeds Not Words
As I said on Wednesday, I wanted to write something about the tensions between Chief Justice Roberts and President Obama on the latter calling out the Supreme Court on its corporate campaign funding decision during the State of the Union address. Surprisingly, I find myself agreeing with Roberts, albeit in a small and almost tangential way. First, the simple answer to his main complaint:
“To the extent the State of the Union has degenerated into a political pep rally, I’m not sure why we are there,” Roberts said at the University of Alabama School of Law.
[snip]
“Anybody can criticize the Supreme Court. . . . I have no problem with that,” he said. He objected to criticism in such a public setting, where the justices had no choice but to sit silently.
“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?”
The Supreme Court is the most undemocratic institution we have, something that has been a source of controversy from the very beginning. Thomas Jefferson wrote of “the original error of establishing a judiciary independent of the nation, and which, from the citadel of the law can turn its guns on those they were meant to defend, and control and fashion their proceedings to its own will.” Jefferson was not at his best in sniping at the Court (his issue, as is the issue with most presidents, is that the Court wasn’t doing exactly what he wanted), and there are good reasons to insulate judges from politics. That said, in this country even judges are of the people not above the people, and if the only check we get on them is a bit of heckling before Congress, so be it. They can take it, because they’re pretty well invulnerable the rest of the time.
Or are they? In 1804, Congress impeached Supreme Court Justice Samuel Chase not for any crime such as taking bribes or being photographed (well, in 1804 painted) in bed with a prostitute, but because he was a political target as a staunch Federalist. The articles of impeachment concerned procedural matters and whether Chase had allowed his political views to influence his conduct of various cases. He was acquitted on all charges by the Senate. Jean Edward Smith’s book John Marshall: Definer of a Nation contains Marshall’s response to the impeachment:
He reminded Chase that in ancient times, juries were subject to an attaint for deciding incorrectly [basically, jurors could be declared criminals for rendering an unpopular verdict]. “The present doctrine seems to be that a Judge giving a legal opinion contrary to the will of the legislature is liable to impeachment.” Marshall then told Chase that if the legislature did not agree with a judge’s holding, they should reverse it by statute. Just as “the old doctrine of attaint has yielded to the silent, moderate but not less operative influence of new trials, I think the modern doctrine of impeachment should yield to an appellate jurisdiction in the legislature.”
In other words, don’t just talk about Supreme Court decisions you disagree with, do something!
March 12th, 2010 at 7:47 pm
Obama’s complaint about that Supreme Court Decision is that it invalidated a useful law. Even if he’s right, he ought to know that the Supreme Court’s job is to uphold the Constitution, not to judge the desirability of the laws they consider.
The Court ruled that the campaign finance law conflicted with Freedom of Speech. If the President disagreed with the decision, he should have made the argument that freedom of speech was not impaired, rather than explain why he believes the law was a good one.
March 12th, 2010 at 9:28 pm
Wasn’t Chase the crazy one? Wait, no, my mistake, that was John Rutledge. Its hard to keep some of those early Justices straight.
David, in a political setting (the State of the Union), the President (a politician) made a political argument about a Supreme Court decision. I have no problem with that, and AFAIC, neither should Chief Justice Roberts. The Supreme Court is a political institution too, no matter how hard it may, at times, try not to be one - and no matter how hard Chief Justice “Balls and Strikes” Roberts and his strict constructionist pals try to insist its not. Actions speak louder than words.
“the Supreme Court’s job is to uphold the Constitution”
Well yes, sort of; but by saying that, you’re essentially repeating Chief Justice Roberts’ “balls and strikes” argument. That argument doesn’t hold water, and IMHO, it was laughably ridiculous for Roberts to make it (though I know why he did).
The Court’s job is to settle the disputes that it brings before itself. And in so doing, the Court sometimes has to interpret the Constitution. What the Constitution means as a matter of law, according to that interpretation, is what at least 5 Justices of the Supreme Court say it means.
The Court doesn’t get cases about the parts of the Constitution that are crystal clear - say, regarding the President, “neither shall any person be eligible to that office who shall not have attained to the age of thirty five years” - those are easily decided. The Court gets the ambiguous stuff, like what “Congress shall make no law . . . abridging the freedom of speech” means in a given fact situation. There’s an awful lot left up to interpretation in those words.