The Supreme Courtship

05/16/2010 05:12 am ET | Updated May 25, 2011

The Supreme Courtship between Barack Obama and John Roberts is officially over. While addressing a group of law students in Alabama last week, the Chief Justice Roberts confessed to being troubled that the president's yearly address "degenerated into a political pep rally."

He suggested, too, the issue isn't so much dissent, but decorum. A State of the Union address is simply not the right time, or place for a chief executive to express his dissatisfaction with a court's ruling, said the judge.

But, if Abraham Lincoln had the opportunity to vent after the Supreme Court made their notorious Dred Scott ruling, in 1857, there might not have been a Civil War; might not. Nowadays, presidents and their cabinets not only get to vent, they get to do it before millions of people simultaneously.

Justice Roberts' diatribe didn't go without a response which got as much air time. White House Press Secretary Robert Gibbs later said hat what the White House finds troubling is a 5-4 decision that allows corporations to openly spend as much as they want on election campaigns. The Citizens United v. Federal Election Commission ruling wasn't so much about free speech, or the free flow of information, but the free flow of cash, and the power of corporations to mettle in elections without having to hide their role in making, or breaking candidates.

Not all presidents openly dissent, though. One who liked to go by the nickname "the Decider," George W. Bush, only got to be president by virtue of a Supreme Court ruling. Ironically, he later went on to use the presidency as his bully pulpit as he shredded the Constitution with not so much as a peep from the Supreme Court.

Yet, after only a year in office, Barack Obama has been taken to task more for a comment, during an annual speech, about the Supreme Court ruling that gives First Amendment rights to corporations than George W. Bush ever was for systematically neutering the First and Fourth Amendments, to say nothing of habeas corpus and international law.

There are some legal historians, like Stanford Law professor Lawrence M. Friedman, who contend that despite the best efforts at judicial activism of justices like Roberts and Alito, the Supreme Court mirrors the political trends of its day. An example of this is how when, in 2003, the Supremes struck down sodomy laws, most states had already repealed them. And, by extension, big business has been in bed with political campaigns for generations; the recent ruling merely allows them to do so openly, and without regulation.

It is not uncharacteristic of presidents or Congress to defy the Supreme Court. Lincoln's dissent of the Dred Scott ruling came with his Emancipation Proclamation. One sees surprisingly little dissent coming from the Court itself. The Supremes sat out Joe McCarthy's Communist witch hunts, and it will probably sit out those pernicious elements of the USA Patriot Act which deprive "domestic terrorists" of their constitutional protections against illegal search and seizure.

Likewise, one may not expect the Supremes to stand up to the gun lobby, and take on the so-called Second Amendment right to bear arms anymore than one can expect to see the Supreme Court rule on the legality of the Military Commissions Act.

Given that a president has, at most, less than a decade, and a Supreme Court appointment is for life, the courtship is one that unfolds in stages.

Despite President Obama's open and vigorous disagreement with a recent Supreme Court ruling, if the climate in Washington was intrinsically hostile to corporate power, the Court would not have ruled as it did. If this administration wants to prove that they are not also in the pocket of big business, the president and the Democratic leadership can legislatively rescind the ruling. Anything less will be a clear signal that they are blowing hot air.

The Court can rule in theory, but it is up to Congress to govern practice. In the end, blaming the Supreme Court for the inevitable ramifications that will come about as a result of the Citizens United decision will be taken about as seriously as blaming the Bush administration for the build-up of military intervention in Afghanistan.

The Supreme Courtship is over, and it's up to this president to continue to show his mettle.

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